192 Conn. 335 (1984) | Cited 13 times | Supreme Court of Connecticut | February 28, 1984

This case is a sequel to that of Bruno v.Civil Service Commission, 184 Conn. 246, 440 A.2d 155(1981) (hereinafter Bruno I), wherein the plaintiffrequested injunctive relief from the civil servicecommission's (hereinafter commission) refusal to appointhim to the position of recreation superintendent of thecity of Bridgeport. The undisputed facts forming thebasis for the former appeal are as follows:

In 1969, the plaintiff Kenneth C. Bruno, while a residentof Bridgeport, was appointed to the position ofrecreation supervisor for the city of Bridgeport. In1972, he moved to the town of Stratford where heresided until 1980 when he returned to Bridgeport. InSeptember of 1976, the commission announced that itintended to conduct an open, competitive examinationfor the position of recreation superintendent within thecivil service system. The notice of application for thisposition specifically required "[b]ona fide residence inthe City of Bridgeport for not less than one yearimmediately preceding the date of examination." Pursuantto the notice, the plaintiff made his applicationfor the position and examination although he did notmeet the residency requirement. The defendantLeonard L. Crone, who met the rule II (3)1 durationalresidency requirement as provided in the notice, alsoapplied for the position and examination.

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By letter dated October 18, 1976, the commissionnotified the plaintiff that his application to take therecreation superintendent examination was disapprovedfor failure to meet the requirement as to bonafide residence in the city of Bridgeport. The plaintiffappealed this denial to the commission and was subsequentlynotified that he would be permitted to take theexamination "without prejudice to the merits of theresidency question" and that his taking of the examinationwas in "no way a waiver" of the residencyrequirement.

The examination for the position of recreationsuperintendent consisted of individual oral interviewsat various times and an evaluation of the applicant'straining and experience. On December 17, 1976, thecivil service commission notified the plaintiff that hehad achieved the highest score among all persons examined.When Crone was informed that he had scored secondhighest on the examination, he appealed to thecommission challenging his placement as number twoon the employment list.

On April 4, 1977, the commission, acting in accordancewith instructions from the city attorney of Bridgeport,voted not to appoint the plaintiff to the positionof recreation superintendent. Thereafter, on October6, 1977, the plaintiff filed an action against the commissionseeking an injunction restraining the commissionfrom refusing to appoint him to the position ofrecreation superintendent. After Crone was grantedleave to be made a party defendant, he filed an answer,cross complaint and counterclaim seeking a declaratoryjudgment that he was entitled to the position of recreation

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     superintendent. The issue was joined on Crone'scounterclaim by the filing of an answer by the commissionand the filing of an answer and affirmative defenseby the plaintiff Bruno. By April 3, 1979, the plaintiffhad withdrawn his complaint against the commissionfor injunctive relief, and the trial was conducted onCrone's counterclaim. The trial court ordered thatCrone be placed first on the list. The court held thatthe plaintiff, because of rule II (3), was not qualifiedto take the examination and that he was foreclosedfrom attacking the constitutionality of the rule. Thiscourt subsequently reversed that judgment, ruling thatthe trial court erred when it concluded that, on the basisof Florentine v. Darien, 142 Conn. 415, 428,115 A.2d 328 (1955), the plaintiff could not challenge the rule.We opined that the record was not adequate for thiscourt to determine the durational residency rule's constitutionalityand that a determination as to its constitutionalitymust await the development, at the triallevel, of a sufficiently complete record: "[T]he presentrecord is deficient because it contains no evidence orfactual determinations concerning the governmentalinterests advanced by the rule, the degree to which themeans employed by the rule are tailored to achieve itslegislative objectives, or the extent to which variousrights of the plaintiff are affected by the rule. "(Footnoteomitted.) Bruno v. Civil Service Commission,supra, 251. Accordingly, we remanded the case to thetrial court for further proceedings.2

On remand, the plaintiff, over strong objections byCrone, filed a substitute complaint naming both thecommission and Crone as defendants. At the hearingbefore the state referee, the following governmental

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     interests were advanced by the commission as compellingreasons in favor of the durational residency requirement:

"(a) The City would be deluged with candidatesfor civil service positions if the durational residencyrequirement was eliminated.

"(b) The durational residency requirement promotesan ethnic balance in the City of Bridgeport.

"(c) The durational residency requirement eliminatesthe necessity of selective recruitment which would beexpensive.

"(d) Residents who satisfy the durational residencyrequirement are more apt to take an interest in theaffairs of the City of Bridgeport.

"(e) The rule promotes general economic benefits tothe City of Bridgeport.

"(f) The rule helps to reduce high unemploymentamong inner city minority groups.

"(g) The rule is beneficial in developing improvedrelations between city employees and communitygroups.

"(h) The rule enhances the quality of employee performancebecause of greater knowledge by the employeesof the city and its conditions.

"(i) The rule diminishes absenteeism and tardinessof city employees."

In regard to the above-cited contentions of the commission,the court found the following facts:

"1. Under the Civil Service Rules, employees arerequired to maintain a bona fide residency within thelimits of the City after their appointment to a tenuredposition.

"2. Minorities taking civil service examinations areprotected against discrimination by the manner in

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     which examinations are designed, constructed and validatedunder the EEOC and by Title No. 7 of the 1964Civil Rights Act.

"3. There are no studies or surveys available to supportthe opinion of the Personnel Director or his assistantthat the elimination of the durational residencyrequirement would cause a dilution in the number ofminority applicants for civil service positions or nonminorityapplicants.

"4. There are no studies or surveys available showingthe numbers of unemployed within the inner cityminority groups in Bridgeport.

"5. It is not known whether the Personnel Directoror his assistant utilized United States Census figuresin noticing the examination in question.

"6. The census figures indicate the percentage ofminorities in the City of Bridgeport and the GreaterBridgeport Metropolitan area.

"7. Recruiting for the position of recreation superintendentcould have been accomplished by recruitingsolely within the City of Bridgeport.

"8. There is no basis for the proposition that a durationalwaiting period has a positive impact on relationsbetween city employees and community groups.

"9. Civic interest on the part of city employees canbe accomplished by the bona fide residency rule as distinguishedfrom the durational residency requirement.

"10. The durational residency requirement excludesnon-residents interested in a position, interested in theaffairs of the City and who know the City and the variouscommunities within it.

"11. General economic benefits accrue to the Cityby employment and enforcement of the bona fideresidency rule after appointment rather than from theoperational effect of the durational residency rule.

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"12. No studies or surveys are available indicatingthat there would be an impact on unemployment withinthe City of Bridgeport if nonresidents were permittedto take an examination, certified to a position and thenrequired to maintain a bona fide residence within theCity.

"13. No studies or surveys are available which indicatethat the durational residency requirement willreduce absenteeism and tardiness among municipalemployees. The governmental interest is adequatelyprotected by enforcement of the bona fide residencyrule.

"14. The durational residency rule is not helpful tothe City in finding the best qualified applicants for thecivil service position of a recreation superintendent.

"15. There is no reason why a Stratford residentwould be less capable in serving in the position of recreationsuperintendent than a Bridgeport resident."

It was on the basis of these findings of facts that thetrial court concluded that the classification created byrule II (3) touched upon a fundamental right of theplaintiff to travel either within or outside the state.Therefore, the court, citing Shapiro v. Thompson,394 U.S. 618, 634, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969),reasoned that rule 11(3) would be unconstitutionalunless the state could demonstrate a compelling governmentalinterest to justify the law. After examiningthe reasons advanced by the commission, the court concludedthat "they [the commission] cannot satisfy theheavy burden placed on the City to show a compellingstate interest or a rational basis for the rule." Judgmentwas thus rendered in favor of the plaintiff decreeingthat rule II (3) was violative of the equal protectionprovision of the constitution of the United States. Itis from this decision that Crone appeals.

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On appeal, Crone argues that the trial court erredfor the following reasons: (1) the plaintiff lacked standingto challenge the constitutionality of the durationalresidency requirement, and (2) rule II (3) was not violativeof the equal protection clause of the United Statesconstitution.

We begin by examining the standing issue. Croneinsists that the trial court erred in its conclusion thatthis court had accorded standing to the plaintiff inBruno I to address the constitutionality issue. Heargues that even though this court remanded the casefor further proceedings, it was incumbent upon theplaintiff to prove, ab initio, that he had the requisitestanding to proceed on remand. We disagree.

"`It is the duty of the trial court on remand to complystrictly with the mandate of the appellate courtaccording to its true intent and meaning . . . . Thetrial court should examine the mandate and the opinionof the reviewing court and proceed in conformitywith the views expressed therein.' (Emphasis added.)Nowell v. Nowell, [163 Conn. 116, 302 A.2d 260(1972)]." Wendland v. Ridgefield Construction Services,Inc., 190 Conn. 791, 795, 462 A.2d 1043 (1983). We concludedin Bruno I that the question involved waswhether "the plaintiff [can] attack the constitutionalityof rule II (3) and, if so, is the record before us sufficientlycomplete to determine whether the rule isconstitutionally defective?" Bruno v. Civil ServiceCommission, supra, 249. We further decided that "[a]s aresult of the trial court's erroneous resolution of thisissue . . . he [Bruno] is not foreclosed from attackingthe constitutionality of the rule in this action." Id., 250.Indeed, although the brief of Crone in Bruno I explicitlyemphasized that the plaintiff lacked standing, wedecided the standing issue in favor of the plaintiff. "Asfar as the claims of counsel . . . are concerned . . .the printed briefs are largely the basis upon which the

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     judge works." Maltbie, Conn. App. Proc. 327. Furthermore,after this court's decision in Bruno 1, Cronemoved to reargue, again maintaining that the plaintifflacked standing to attack the constitutionality of thedurational aspect of the residency requirement. Wedenied this motion on June 4, 1981. Implicit in our opinionin Bruno I, especially in view of our remand for furtherproceedings, is the fact that the issue of standingwas resolved. To conclude otherwise would be equivalentto ordering further useless proceedings.

It was on the basis of the foregoing finding of factsthat the trial court reached the conclusions which arethe subject of Crone's second assignment of error.These conclusions were (in addition to the conclusionthat the plaintiff had standing, which ruling we havealready discussed) that the right to travel is a fundamentalright, that rule II (3) penalized the right totravel and therefore requires strict judicial scrutiny,and that rule II (3) is violative of the equal protectionclause of the United States constitution since it"`clearly is not precisely drawn to achieve those purposesof allocating public employment to bona fide residentsand thus favors unemployed residents] with theleast drastic burden' on the right to travel."

The conclusions of the trial court are tested by afinding. Roby v. Connecticut General Life Ins. Co.,166 Conn. 395, 397, 349 A.2d 838 (1974). "A finding is tobe read to uphold the judgment. Every reasonablepresumption will be indulged in to support it."Maltbie, Conn. App. Proc. 135. Therefore, the conclusionsof the trial court must stand unless they are legally orlogically inconsistent with the facts found or theyinvolve the application of some erroneous rule of lawmaterial to the case. Klein v. Chatfield, 166 Conn. 76,80, 347 A.2d 58 (1974). With this precept in mind, weexamine those conclusions dealing with constitutional

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     interpretation, the test applicable to that interpretation,and the equal protection provision of the UnitedStates constitution.

In order to determine whether a statutory schemeviolates the equal protection clause, a court must considerthree factors: "the character of the classificationin question; the individual interests affected by theclassification; and the governmental interests asserted insupport of the classification." Dunn v. Blumstein,405 U.S. 330, 335, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972).The analysis must "commence with a determinationof whether a legislative classification . . . impingesupon a fundamental right. Where the legislationimpinges upon a fundamental right . . . it must bestruck down unless justified by a compelling state interest."Id., 342; see also Horton v. Meskill, 172 Conn. 615,639-40, 376 A.2d 359 (1977).

The trial court in this case concluded that the durationalresidency requirement of rule 11(3) infringed onthe plaintiff's fundamental right to travel:3 "In movinginitially from Bridgeport to Stratford for the bettermentof his style of living and to promote an allegedbetter education for his children, Bruno was exercisinga constitutional right . . . ." We agree with thetrial court that rule II (3) penalized the plaintiff'sexercise of his right to travel in this case.

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The right to travel has long been recognized andprotected as a fundamental right which is firmly establishedin the law. See Massachusetts Board of Retirementv. Murgia, 427 U.S. 307, 312, 96 S.Ct. 2562, 49L.Ed.2d 520 (1976); United States v. Guest, 383 U.S. 745,757, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966). Itis a right which the courts> have repeatedly protectedin the face of durational residency requirements thataffect that right. See Memorial Hospital v. MaricopaCounty, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306(1974); Dunn v. Blumstein, supra; Shapiro v. Thompson,394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600(1969). Writing for the court in Shapiro v. Thompson,Justice Brennan cited with approval the decision ofChief Justice Taney in the Passenger cases, 48 U.S.(7 How.) 283, 492, 12 L.Ed. 702 (1849), as follows: "Forall the great purposes for which the Federal governmentwas formed, we are one people, with one commoncountry. We are all citizens of the United States;and, as members of the same community, must havethe right to pass and repass through every part of itwithout interruption, as freely as in our own States."Shapiro v. Thompson, supra, 630.

The defendant in this case recognizes the existenceof a protected right to travel, but argues that the rightis not implicated in this case since it is only interstateand not intrastate travel which has been elevated tothe level of a fundamental right. He maintains thatsince the only travel involved in this case concerns theplaintiff's move in 1972 from Bridgeport, Connecticutto Stratford, Connecticut, this court should reject theclaimed right to intrastate travel. We disagree.

We find our thinking to be substantially in accordwith the decision of the United States Court of Appealsfor the Second Circuit in King v. New Rochelle MunicipalHousing Authority, 442 F.2d 646, 648 (2d Cir.),cert. denied, 404 U.S. 863, 92 S.Ct. 113, 30 L.Ed.2d

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     107 (1971). The court in King considered a five-yeardurational residency requirement for admission to publichousing. The appellant municipality argued that theUnited States Supreme Court decisions on the issueof durational residency protected only the fundamentalright to interstate travel. Protecting the plaintiff'sright to intrastate travel, the court concluded that "itwould be meaningless to describe the right to travelbetween states as the fundamental precept of personalliberty and not to acknowledge a correlative constitutionalright to travel within a state." Id., 648. Furthermore,the way to the recognition of an intrastate rightto travel within Connecticut has already been consideredin Nicholls v. Schaffer, 344 F. Sup. 238 (D. Conn. 1972).In Nicholls, the United States District Court considereda constitutional attack on a statutory requirementin a six-month durational residency requirementwhich, if not complied with, prohibited the plaintiffs'right to register to vote in town elections. The "travel"involved in the case was intrastate travel; the plaintiffswere denied the right to register to vote in Hartfordafter they moved there from West Hartford. Thecourt declared the requirement invalid as a denial ofequal protection, quoting a comment made by JusticeMarshall in Dunn v. Blumstein, supra, 342: "[S]uchlaws [with durational residency requirements] force aperson who wishes to travel and change residences tochoose between travel and the basic right to vote. . . . Absent a compelling state interest, a State maynot burden the right to travel in this way. Implicit inthis Nicholls decision was the recognition by the courtof a fundamental right to intrastate travel, a right wenow explicitly recognize.

Crone also argues that the plaintiff's right to travelwas not infringed since there is no required "classification"in this case. Citing Shapiro v. Simpson, Supra,Dunn v. Blumstein, Supra, and Memorial Hospital v.

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     Maricopa County, supra, he maintains that at the cruxof any equal protection argument is the "classification"existing at the time of the alleged violation. In eachof these cited cases, the "classification" which existedinvolved two classes of residents, new and old, indistinguishablefrom one another except for the length oftime that each was a resident. The equal protectionchallenge to the classification in question was raisedby those who had recently exercised their right to travelduring the relevant time period. In each case, the plaintiffwas denied benefits simply because of the lengthof time he was a resident. Thus, the same class (residents)was treated differently because the new residentshad recently traveled. If these plaintiffs had nottraveled, there could have been no claim of infringementon the right to travel. Crone contends that sincethe plaintiff in the present case did not travel duringthe qualifying one year period, no invidious classificationdenying him the right to travel exists; therefore,no penalty on the plaintiff's right to travel has beenincurred. We disagree.

The trial court held that the "failure of the Personneldirector to notice and give a promotional examinationfor the position of recreation superintendent . . .placed him in a class which is adversely affected byRule II (3) . . . ." Evidence was offered at trial whichshowed that the examination for recreation superintendentin 1976 could have and should have been noticedas a promotional examination with no durational residencyrequirement, which the plaintiff was eligible totake. Section 9 of the civil service rules provided thatin instances where there was an opening in a superiorclass, "the examination shall be opened to those in aninferior rank in the same class . . . ." (Emphasisadded.) There was testimony at trial from the personneldirector for the city of Bridgeport, whose duty itwas to administer the civil service rules and regulations,

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     that a promotional examination does not require durationalresidency; that the position of recreation superintendentwas of a rank or grade which was superior tothat held by the plaintiff at the time; that examinationsfor this or a similar position were uniformly noticedas promotional examinations in the past; and that therewere sufficient members of the recreation departmentor class, including the plaintiff, who were eligible totake a promotional examination. Nonetheless, theexamination in question was noticed as an open, competitiveexamination containing a durational residencyrequirement as found in rule II (3) of the civil servicerules. Further evidence showed that the examinationin issue was noticed on this basis and with a durationalresidency requirement as a preference to one individualwho was a favorite of the Bridgeport park board.We agree with the trial court that the plaintiff was amember of a class of employees who aspired to be promotedto a superior position. Since this "classification"does exist, the plaintiff is one such member entitled topursue his equal protection claim in this case.

Since we have concluded that a fundamental rightis implicated in this case, the state's action is notentitled to its usual presumption of validity. "Strict judicialscrutiny" requires that the state rather than thecomplainants carry the "heavy burden of justification."4It is insufficient to show that the classificationis merely "`reasonably related to a permissible stateinterest' or merely rational." Fasulo v. Arafeh,173 Conn. 473, 488, 378 A.2d 553 (1977), quoting Dunn v.

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     Blumstein, supra. Rather, any such statute must bedrawn with "precision," "tailored" to serve legitimateobjectives; should a second route exist which is lessoffensive to constitutionally protected rights, then thatroute must be chosen. Dunn v. Blumstein, supra.

The court below examined the reasons advanced bythe commission in favor of rule 11(3) to determinewhether they satisfied the required test. The court concludedthat the majority of the proposed interests;including claims that unemployment would be reduced,that relations between city employees and communitygroups would be enhanced, that selective recruitmentis expensive to the city, that general economic benefitswould accrue to the city, and that absenteeism wouldbe reduced among city employees; was "not supportedby logic, reason or experience. A perusal of the transcriptdiscloses not one specific example or documentedcase in Bridgeport to support [any] such claim andtherefore the conclusion is inevitable that they are illusory . . . ."The commission had the burden of presentingthe evidence including, if necessary, the burdenof supplying the documents and figures relied upon.Since the commission failed to substantiate many ofits suggested interests, the court was correct in holdingthat a compelling state interest was not advancedin favor of rule II (3).

As for certain other interests advanced by the commission,the trial court found that there were alternativesavailable which were less offensive than thedurational residency rule. As to the claim that residentswho satisfy rule II (3) are more likely to take an interestin community affairs, the court concluded that a residencyrule requiring the maintenance of a bona fideresidence after appointment would lead to the desiredresult. Furthermore, the court found that "[a]lthoughthe durational residency rule may have a rational relationshipto the purpose of allocating public employment

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     to bona fide residents and thus favor unemployed residents,it `clearly is not precisely drawn to achieve thosepurposes with the least drastic burden on the right totravel.'"

We agree that the means employed by the commissionare certainly not the least drastic means available;there exist other means which accomplish the resultwithout infringing upon individual liberties. For example,if prospective candidates must be acquainted withthe city, and this is of legitimate concern to the city,then those candidates may be tested as to their familiaritywith the city and its communities. This can be donewith nonresidents as well. If it is important to developrelations between city employees and citizens, then theemployee may be required to live within the geographicalconfines of the city while that employee holds municipalemployment. If absenteeism or tardiness are theissues, the employee could be required to live in the citywhile he holds the job. This is true also for any economicbenefit inuring to the city while the employeeholds the civil service job. These varied interests wouldbe insured through enforcement of a bond residencyrequirement rather than a durational one.

Accordingly, we conclude that the trial court correctlyheld that the right to travel freely within the stateof Connecticut is a fundamental right and that the durationalresidency requirement of rule II (3) cannot passthe test of "strict judicial scrutiny." The lengthy findingof facts by the trial court supports the conclusionthat rule II (3) is violative of the equal protection clauseof the United States constitution and is, therefore,invalid.

There is no error.

In this opinion HEALEY and DALY, Js., concurred.

1. Rule II (3) of the rules of the civil service commission of thecity of Bridgeport provides: "No person shall be admitted to an examinationfor any class of positions in the classified service who has not been a bonafide resident of the City of Bridgeport for at least twelve consecutivemonths immediately prior to the date of the examination; provided that suchrequirement of residence may be suspended by the Commission as to any classor classes of positions requiring highly professional, scientific ortechnical qualifications, or in case where through low compensation forservices such a requirement is disadvantageous to the public interest, butall such cases with the reasons therefore, shall be reported in the annualreport of the commission to the mayor."

2. Although the commission participated at the trial upon remand, ithas not appealed the decision of the trial court.

3. The plaintiff also argues that his fundamental right to publicemployment is violated by rule II (3). The United States Supreme Court inMassachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562,49 L.Ed.2d 520 (1976), has held that the right of government employmentis not a fundamental right requiring strict scrutiny. "Murgia doesnot preclude strict scrutiny, however, where public employment hinges ona durational residence requirement. Since the right to travel is affected,the specific interest restricted by such requirements need not itself be afundamental right for strict scrutiny to be triggered." Lee, "DurationalResidence Requirements for Public Employment," 67 Cal. L. Rev. 386,394-95 (1979). Consequently, our analysis in this opinion will focus solelyon the right to travel.

4. Recognizing this requirement, the trial court allowed theplaintiff to file a substitute complaint against both Crone and thecommission, in effect nullifying the previous withdrawal of the actionagainst the commission. The transcript indicates that the referee would notconsider the substitute complaint, stating that he would follow the remand,being solely concerned with the question of constitutionality. We glean thatthis is the reason that the commission played a vital role in theexamination of witnesses and arguments to the court.Page 352

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