Eggert v. City of Seattle

505 P.2d 801, 81 Wash. 2d 840, 1973 Wash. LEXIS 855

• Court: Washington Supreme Court
• Decided: January 25, 1973
• Docket: 42299
• Status: Published

Opinions

Utter, J.

Respondents challenged certain provisions of the Seattle City Charter granting preference in employment for some positions to those who have been residents of the city, or in the case of respondent Eggert, residents of the county, for at least 1 year. The trial court found the challenged provisions unconstitutional and granted respondents’ request that they be allowed to compete on an equal basis with all other applicants for the civil service positions at issue. The city appeals.

The claim of respondents is that durational residency requirements infringe upon their constitutionally protected right to travel and that the charter provisions further violate the equal protection clause of the Fourteenth Amendment. The sole issue is whether the City of Seattle may lawfully impose a 1-year durational residency requirement upon applicants for civil service positions who are otherwise valid residents of the municipality. We hold they may not and affirm the trial court.

Concern over the right to travel has historically been a concern of both English and American people. The recognition of the importance of freedom of movement ranges from the declaration in the Magna Charta allowing every free man to leave England except during wars, to article 13, section 1 of the Universal Declaration of Human Rights of the United Nations which declares “Everyone has the right to freedom of movement and residence within the borders of each State.”

The growth of this right is in part the result of efforts to evade restrictions imposed by feudal apprenticeship and paupership laws in 17th century England. By the time of the American Revolution, restrictions by England, on travel west of the Alleghenies was a source of grievance sufficient to be the cause of denunciation from the Continental Congress. Z. Chafee, Jr., Three Human Rights in the Constitution 162 (1956).

The Articles of Confederation provided in article 4 that “the people of each State shall have free ingress and regress to and from any other State.” The constitution, however, failed to specifically enumerate a right to travel. Boudin, The Constitutional Right to Travel, 56 Colum. L. Rev. 47 (1956).

Perhaps the earliest enunciation of the right to travel was in Corfield v. Coryell, 6 F. Cas. 546 (No. 3230) (C.C.E.D. Pa. 1823). There Justice Washington, enumerating those rights he felt to be fundamental, noted at page 552:

The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise . . . may be mentioned as [one] of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental .. .

In the Passenger Cases, 48 U.S. (7 How.) 282, 492 (1849), Chief Justice Taney, in a dissent, commented that freedom to travel is an incident of national citizenship. This dissent is quoted with approval in Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1867), where the United States Supreme Court based the right to travel upon a constitutional requirement that 'all citizens have free access to the seats of government.

Modern development of the doctrine began with Edwards v. California, 314 U.S. 160, 86 L. Ed. 119, 62 S. Ct. 164 (1941), where the court held a law denying assistance to nonresident indigents entering the state was an impermissible burden on interstate commerce. A concurring opinion by Mr. Justice Douglas attributed the source of the right to travel as “an incident of national citizenship” and. was an implied right “fundamental to the national character of our Federal Government.” A second concurring opinion by Mr. Justice Jackson, assigned the source of the right to the privileges and immunities clause of the Fourteenth Amendment.

In Kent v. Dulles, 357 U.S. 116, 2 L. Ed. 2d 1204, 78 S. Ct. (1958), the due process clause of the Fifth Amendment was cited as a source of the right to travel. The court, in dictum, recognized “Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage.” The same source for the right was cited by the court in Aptheker v. Secretary of State, 378 U.S. 500, 517, 12 L. Ed. 2d 992, 84 S. Ct. 1659 (1964), where the court premised its decision on tne right to travel. Freedom of travel was stated to be a liberty guaranteed by the Fifth Amendment and, as well, “a constitutional liberty closely related to rights of free speech and association

H 1

The right to travel was given further scope in United States v. Guest, 383 U.S. 745, 757, 16 L. Ed. 2d 239, 86 S. Ct. 1170 (1966), where the court expanded its protection to incidents involving private individuals. The majority noted:

The constitutional right to travel from one State to another . . . occupies a position fundamental to the concept of our Federal Union. It is a right that has been firmly established and repeatedly recognized. . . .

Although there have been recurring differences in emphasis within the Court as to the source of the constitutional right of interstate travel, there is no need here to canvass those differences further. All have agreed that the right exists.

(Footnote omitted.) The court further stated, in note 17:

The right to interstate travel is a right that the Constitution itself guarantees . . . the right to travel freely from State to State finds constitutional protection that is quite independent of the Fourteenth Amendment.

Shapiro v. Thompson, 394 U.S. 618, 22 L. Ed. 2d 600, 89 S. Ct. 1322 (1969), adhered to Guest in declining to ascribe the right to travel to any particular provision of the constitution. The court did, however, at one point apply an equal protection 'analysis, finding infringement of a fundamental right of interstate movement and requiring a showing of a compelling state interest to justify the infringement. In another part of the opinion, the court rejected a rational relationship argument by the state and held, where by traveling the parties were exercising a constitutional right, “any classification which serves to penalize the exercise of that right, unless shown to be necessary to promote a compelling governmental interest, is unconstitutional.”

In Dunn v. Blumstein, 405 U.S. 330, 31 L. Ed. 2d 274, 92 S. Ct. 995 (1972), the court again recognized the status of the right to travel as a fundamental right protected by the equal protection clause of the Fourteenth Amendment where it stated, “The constitutional question presented is whether the Equal Protection Clause of the Fourteenth Amendment permits a State to discriminate in this way among its citizens.” The protection of the right by the constitution itself is also recognized by the majority in Dunn, where citing -Justice Stewart’s concurring opinion in Shapiro, it noted “The right to travel is ‘an unconditional personal right,’ a right whose exercise may not be conditioned.” Justice Stewart had, in Shapiro, emphasized that travel is an established constitutional right, not a mere conditional liberty subject to regulation and control under conditional due process or equal protection standards.

As also noted in Dunn v. Blumstein, supra, to decide whether a law violates the equal protection clause, the court must look to three things: (1) the character of the classification in question, (2) the individual interests affected by the classification, and (3) the governmental interests asserted in support of the classification. We hold that, in the instant case, respondents’ right to equal protection of the law has been violated.

The City of Seattle’s charter, classifying bona fide residents upon the basis of recent travel, penalizes only those residents who have traveled into the city during the qualifying period. As such, it is a classification which affects a fundamental right involving a protected individual interest, and under Shapiro and Dunn, the city must show a compelling state interest to justify its action.

Alternately, since the existence of the right to travel is an unconditional personal right guaranteed by the constitution, Shapiro and Dunn require that a compelling state interest be shown before the state may burden this right.

The right to travel is a right applicable to intrastate as well as interstate commerce. Inasmuch as the right to travel is not based on the commerce clause, it does not depend on the interstate nature of travel. King v. New Rochelle Municipal Housing Authority, 314 F. Supp. 427 (S.D.N.Y. 1970); Karp v. Collins, 310 F. Supp. 627, 634 (D.N.J. 1970). Rights, such as the right to travel, which involve personal liberty are not dependent on state lines. Both travel within and between states is protected.

The city attempts to justify its actions by arguing that the court, in a note in Shapiro, indicated its decision there did not, per se, invalidate the validity of waiving a residence requirement, determining eligibility to vote, etc. As stated in Shapiro v. Thompson, supra, n.21:

We imply no view of the validity of waiting-period or residence requirements determining eligibility to vote, eligibility for tuition-free education, to obtain a license to practice a profession, to hunt or fish, and so forth. Such requirements may promote compelling state interests on the one hand, or, on the other, may not be penalties upon the exercise of the constitutional right of interstate travel.

Much of the difficulty posed by the note involves a determination of what protected travel is.

The seeming conflict between the holding of Shapiro and note 21 was commented on in Cole v. Housing Authority, 435 F.2d 807 (1st Cir. 1970). There the court indicated the use of the word “travel” in Shapiro wras in the sense of migration with intent to settle and abide, and that, therefore, laws disadvantaging persons traveling to take advantage of state benefits and then leaving are permissible. The court noted, at page 811:

For example, [in Shapiro] the Court suggested that residency is a reasonable requirement for eligibility to receive welfare benefits but that the one-year waiting period was unconstitutional. . . . Any residency requirement might be thought to penalize the right to travel if “travel” is used in the sense of movement. A resident of Maine vacationing for a month in New Hampshire might be penalized for traveling if he could not obtain the benefits of a library card in New Hampshire during his vacation. Nevertheless, a residency requirement so “penalizing” that kind of travel is probably permissible under Shapiro.

Under this reading of Shapiro, we need only to ask if the two-year residency requirement penalized persons because they have recently migrated to Newport.

(Footnote omitted.)

Two lower court decisions prior to Dunn upheld the power of a state to impose higher tuition upon nonresident students. Starns v. Malkerson, 326 F. Supp. 234 (D. Minn. 1970), aff’d mem., 401 U.S. 985, 28 L. Ed. 2d 527, 91 S. Ct. 1231 (1971); Kirk v. Board of Regents, 273 Cal. App. 2d 430, 78 Cal. Rptr. 260 (1969), appeal dismissed per curiam, 396 U.S. 554, 24 L. Ed. 2d 747, 90 S. Ct. 754 (1970). Starns relies heavily upon Kirk for its holding.

The count in Starns, using an equal protection analysis only, distinguishes Shapiro on two grounds by first noting that there the waiting period had as a specific objective the exclusion of the poor who needed or who might need relief, and thereby served as a constitutionally impermissible purpose for the classification, while in the tuition cases the residence requirements did not have the purpose or effect of excluding or deterring nonresident students from attending the university. Secondly, the court in Starns held the denial of lower resident tuition rates did not endanger the health or life of the applicants as the denial of welfare benefits did in Shapiro, and therefore no fundamental right was infringed upon and the compelling state interest test did not apply.

The decision in Dunn makes clear that the right to travel is, as a fundamental right, violated by classifications which penalize, not actually deter the right to travel, and that actual deterrence was not a factor to be considered in deciding whether a penalty was imposed. See also Vaughan v. Bower, 313 F. Supp. 37 (D. Ariz. 1970), aff’d, 400 U.S. 884, 27 L. Ed. 2d 129, 91 S. Ct. 139 (1970). The Starns decision did hold there was no penalty on the right to travel, and we do not comment on that finding as that question is not before us. It is clear, however, that in the case before us the durational residency requirement does; penalize recent travel by completely and unconditionally depriving those recently migrated to the city, regardless of their status as bona fide residents, of the right to apply for employment. The city argues that its residency provisions cannot be said to impose a penalty on the right to travel inasmuch as even if respondents were to have the right to apply for employment, they could not be guaranteed work.

The city’s argument that respondents are not penalized, inasmuch as they could not be guaranteed employment, even if eligible, misconstrues the claimed penalty. Respondents are seeking to preserve the right to compete for employment on an equal basis with all other city residents. The denial of their applications on durational residency grounds is a clear penalty. It is even more oppressive when the positions sought by two respondents as park and recreational supervisors are substantially unavailable in the private sector of employment.

Respondents argue that the right to seek gainful employment is a fundamental right which requires a compelling state interest be shown to justify classifications which discriminate against it. Truax v. Raich, 239 U.S. 33, 60 L. Ed. 131, 36 S. Ct. 7 (1915); Keenan v. Board of Law Examiners, 317 F. Supp. 1350 (E.D.N.C. 1970); Purdy & Fitzpatrick v. State, 71 Cal. 2d 566, 456 P.2d 645, 79 Cal. Rptr. 77 (1969). We need not decide whether or not the right to seek gainful employment has risen to the level of a fundamental right, since the compelling state interest test is still required by the penalty on the right to travel.

It is further argued that inasmuch as the city is not the only employer, the rights denied are not uniquely governmental as are welfare benefits or voting, and that Dunn and Shapiro therefore do not apply. Nowhere in the majority opinions in either Dunn or Shapiro is the distinction made between rights which are uniquely governmental and those which are not, and the consequent applicability of the right to travel. On the contrary, in United States v. Guest, 383 U.S. 745, 16 L. Ed. 2d 239, 86 S. Ct. 1170 (1966), the court held that the right to travel can be protected from interference by private individual's as well as by state and federal governments.

The city offers no argument that it has a compelling state-interest to justify the durational residency requirement. Without such an interest, the requirement violates both the equal protection clause of the Fourteenth Amendment and the respondents’ constitutional light to travel.

Judgment affirmed.

Finley, Rosellini, Hamilton, Stafford, and Wright, JJ., concur.

1 An interpretation of the right to travel which would hold it comparable to First Amendment rights has been urged. The argument is that, inasmuch as freedom to gather information and of assembly depends on freedom to travel, travel should also receive the same degree of protection as the First Amendment. This could arguably lead to a right to challenge a restriction to travel on its face without showing personal injury from the law. If, in fact, it is related to First Amendment rights, a compelling state interest could be shown only by a clear and present danger to public safety. Comment, The Right to Travel and its Application to Restrictive Housing Laws, 66 N.W.L. Rev. 635, 641 (1971).