OpenJurist

424 US 645 McCarthy v. Philadelphia Civil Service Commission

424 U.S. 645

96 S.Ct. 1154

47 L.Ed.2d 366

Francis McCARTHY,
v.
PHILADELPHIA CIVIL SERVICE COMMISSION.

No. 75-783.

March 22, 1976.

PER CURIAM.

1

After 16 years of service, appellant's employment in the Philadelphia Fire Department was terminated because he moved his permanent residence from Philadelphia to New Jersey in contravention of a municipal regulation requiring employees of the city of Philadelphia to be residents of the city. He challenges the constitutionality of the regulation and the authorizing ordinances1 as violative of his federally protected right of interstate travel. The regulation was sustained by the Commonwealth Court of Pennsylvania2 and review was denied by the Pennsylvania Supreme Court.3 His timely appeal is here pursuant to 28 U.S.C. § 1257(2).

2

The Michigan Supreme Court held that Detroit's similar requirement for police officers was not irrational and did not violate the Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment.4 We dismissed the appeal from that judgment because no substantial federal question was presented. Detroit Police Officers Ass'n v. City of Detroit, 405 U.S. 950, 92 S.Ct. 1173, 31 L.Ed.2d 227 (1972). We have therefore held that this kind of ordinance is not irrational. Hicks v. Miranda, 422 U.S. 332, 343-345, 95 S.Ct. 2281, 2288-2289, 45 L.Ed.2d 223 (1975); see Wardwell v. Board of Education of Cincinnati, 529 F.2d 625, 628 (CA6 1976).

3

We have not, however, specifically addressed the contention made by appellant in this case that his constitutionally recognized right to travel interstate as defined in Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); and Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S.Ct. 1076, 39 L.Ed.2d 306 (1974), is impaired. Each of those cases involved a statutory requirement of residence in the State for at least one year before becoming eligible either to vote, as in Dunn, or to receive welfare benefits, as in Shapiro and Memorial Hospital.5 Neither in those cases, nor in any others, have we questioned the validity of a condition placed upon municipal employment that a person be a resident At the time of his application.6 In this case appellant claims a constitutional right to be employed by the city of Philadelphia while he is living elsewhere.7 There is no support in our cases for such a claim.

4

We have previously differentiated between a requirement of continuing residency and a requirement of prior residency of a given duration. Thus in Shapiro, supra, 394 U.S. at 636, 89 S.Ct. at 1332, 22 L.Ed.2d at 616, we stated: "The residence requirement and the one-year waiting-period requirement are distinct and independent prerequisites." And in Memorial Hospital, supra, 415 U.S. at 255, 94 S.Ct. at 1081, 39 L.Ed.2d at 313, quoting Dunn, supra, 405 U.S. at 342 n. 1392 S.Ct. at 1003, 31 L.Ed.2d at 284, the Court explained that Shapiro and Dunn did not question " 'the validity of appropriately defined and uniformly applied bona fide residence requirements.' "

5

This case involves that kind of bona fide continuing-residence requirement. The judgment of the Commonwealth Court of Pennsylvania is therefore affirmed.

6

Affirmed.

7

THE CHIEF JUSTICE, Mr. Justice BRENNAN, and Mr. Justice BLACKMUN would note probable jurisdiction and set the case for argument.

1

§ 7-401(u) of the Philadelphia Home Rule Charter of 1951; § 20-101 of the Philadelphia Code (as amended); and § 30.01 of the Philadelphia Civil Service Regulations.

2

19 Pa.Cmwlth. 383, 339 A.2d 634 (1975).

3

In an unreported order entered on September 2, 1975, that court denied a petition for review.

4

Detroit Police Officers Ass'n v. City of Detroit, 385 Mich. 519, 190 N.W.2d 97 (1971).

5

Although there is a durational residence requirement in the Philadelphia ordinances, appellant does not have standing to challenge that requirement.

6

Nor did any of those cases involve a public agency's relationship with its own employees which, of course, may justify greater control than that over the citizenry at large. Cf. Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811, 817 (1968); CSC v. National Ass'n of Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973); Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973).

7

Appellant seeks review of other alleged errors as if presented in a petition for a writ of certiorari. We decline to review those issues.