Seabrook Police Ass'n v. Town of Seabrook

635 A.2d 1371, 138 N.H. 177, 1993 N.H. LEXIS 186
CourtSupreme Court of New Hampshire
DecidedDecember 30, 1993
DocketNo. 92-186
StatusPublished
Cited by7 cases

This text of 635 A.2d 1371 (Seabrook Police Ass'n v. Town of Seabrook) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Seabrook Police Ass'n v. Town of Seabrook, 635 A.2d 1371, 138 N.H. 177, 1993 N.H. LEXIS 186 (N.H. 1993).

Opinions

Thayer, J.

The plaintiff, Seabrook Police Association (association), appeals from the Superior Court’s (O’Neill, J.) determination upholding the requirement that police officers employed by the Town of Seabrook (town) must reside within the town. We affirm.

In 1982, the town adopted a home rule charter pursuant to RSA chapter 49-B. As amended in 1983, part II, article 23 of the charter states:

“The Chief of Police and all department employees shall reside within the Town during the period of their employment. The chief and the employees hired hereafter shall be allowed up to twelve months to establish residency once they become employed. (The application of the residency requirement provisions for police will apply to only individuals hired after the date of adoption of the Charter.)”

In 1987, the town selectmen sought to enforce the residency requirement and notified its police officers, including those who were hired before the home rule charter was adopted, that officers who did not comply with the residency requirement by December 31, 1987, would be discharged. The association sought injunctive and declaratory relief, arguing that the right to live where one chooses is a fundamental right protected by the New Hampshire Constitution. The town conceded this point but argued that the need for quick response time occasioned by “unique safety concerns” provided a compelling [178]*178State interest outweighing the police officers’ right to live outside the town. On February 28, 1992, the trial court found:

“[T]he residency requirement imposed on the Seabrook Police Department is valid in light of the compelling state interests which the Town has advanced in support thereof____ The safety concerns attendant to a small seacoast town as exacerbated by the existence of a nuclear generation plant are public interests important enough to justify the restriction on the officers’ private rights.”

On appeal, the association argues: (1) the residency requirement violates the right to travel and live where one chooses under part I, articles 1 and 2 of the New Hampshire Constitution; (2) the residency requirement violates the equal protection provisions contained in part I, articles 1 and 2 of the New Hampshire Constitution; and (3) the town forced the association to litigate a clearly defined and established right, thereby entitling the association to attorney’s fees. Because the town prevails on the first two arguments, we need not address the attorney’s fees issue. We note at the outset that this decision is based solely on the New Hampshire Constitution pursuant to the association’s reliance on State law affording greater protection than federal law. State v. Ball, 124 N.H. 226, 232, 471 A.2d 347, 350-51 (1983); see Michigan v. Long, 463 U.S. 1032, 1041 (1983).

We originally addressed the issue of municipal residency requirements in Donnelly v. City of Manchester, 111 N.H. 50, 274 A.2d 789 (1971), in which the plaintiff schoolteacher challenged a Manchester ordinance requiring all city employees to reside in Manchester within twelve months of being hired. Basing our decision on both State and Federal Constitutions, we held that such an ordinance restricted the fundamental right of municipal employees to live where they wished and to travel freely within and across the State’s borders, and that such a restriction could only be justified upon a showing of an important public interest. Id. at 51-52, 274 A.2d at 791. We recognized at that time that there may be certain “employees whose residence near their place of duty may ... be important enough to justify a restriction upon their place of residence----” Id. at 52, 274 A.2d at 791. We found no such justifying circumstances surrounding the employment of teachers, however, and thus invalidated the ordinance. Id. at 53, 274 A.2d at 792.

Subsequently, the United States Supreme Court ruled that the right to travel under the Federal Constitution does not encompass a right to be employed by a municipality while living elsewhere, and in so doing upheld an ordinance requiring city employees to live within [179]*179the City of Philadelphia. McCarthy v. Philadelphia Civil Serv. Comm’n, 424 U.S. 645, 646-47 (1976).

Based upon the McCarthy decision, the City of Manchester again asked us to enforce its residency requirement for municipal employees, arguing that the McCarthy reasoning should be applied. We reaffirmed Donnelly, basing our determination upon the State constitutional right to travel. Angwin v. City of Manchester, 118 N.H. 336, 336-37, 386 A.2d 1272, 1273 (1978).

The parties here do not ask us to revisit the constitutional analysis set forth in Donnelly and Angwin. Rather, both the association and the town agree that while the right to travel is fundamental, it is not absolute, and may be limited upon a showing that the restriction serves a public interest which is important enough to justify the restriction of the right. This case raises the issue of whether the duties of these police officers are, as stated in Donnelly, “important enough to justify a restriction upon their place of residence.” Donnelly v. City of Manchester, 111 N.H. at 52, 274 A.2d at 791.

In essence, the town must show that the restriction is necessary to achieve a compelling State interest. Merrill v. City of Manchester, 124 N.H. 8, 15, 466 A.2d 923, 928 (1983). Our inquiry does not end, however, upon this showing. The town must also show that the regulation is reasonably related to its objective and does not unduly restrict the fundamental right in question. Powers v. Town of Hampton, 125 N.H. 273, 276, 480 A.2d 143, 145 (1984). In Powers, we held that a restriction was undue because it was “greater than necessary to effectuate the town’s legitimate objective.” Id. (designating entire twenty-four foot width of private way as fire lane unduly restricted fundamental property rights where fifteen feet would be sufficient); see also Metzger v. Town of Brentwood, 117 N.H. 497, 503, 374 A.2d 954, 958 (1977) (zoning ordinance requiring 200 feet of frontage for public vehicle access an unreasonable regulation where 123 feet of frontage provided ready access). As applied in Powers and Metzger, the requirement that regulations be neither unduly restrictive nor unreasonable is similar to the federal “narrowly tailored” requirement. See Planned Parenthood v. Casey, 112 S. Ct. 2791, 2817 (1992) (regulation touching upon fundamental interest must be drawn in narrow terms to survive strict scrutiny); Kilgus v. Cunningham, 602 F. Supp. 735, 739 (D.N.H.) (regulation may not unduly infringe on protected freedom; governmental purpose cannot be pursued by means that broadly stifle fundamental liberties when the end can be more narrowly achieved),

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Bluebook (online)
635 A.2d 1371, 138 N.H. 177, 1993 N.H. LEXIS 186, Counsel Stack Legal Research, https://law.counselstack.com/opinion/seabrook-police-assn-v-town-of-seabrook-nh-1993.