196 Conn. 623 | Conn. | 1985
These consolidated appeals present as principal issues (1) the constitutionality of our “mandatory binding arbitration” statute, General Statutes § 7-473C,
On February 20,1933, the defendant city adopted an ordinance, § 1-13, requiring all of its officers and employees to reside in Bridgeport. This ordinance was reenacted on July 6, 1959. Until 1975, however, no action was taken to enforce the ordinance, except for the termination of one fire department employee in 1965 for violation of a departmental regulation requiring city residency. In December, 1975, the city legislative body adopted a resolution to enforce the ordinance, giving each nonresident employee until July 1, 1976, to acquire a residence in the city or be terminated from employment. Early in 1976, city
On February 19, 1976, seventeen members of the Bridgeport police department began an action to enjoin the city and its officials from enforcing the ordinance. A temporary injunction restraining such enforcement pending a full determination of the merits of the cause was issued on July 1,1976, by the court, Bums, J., following a hearing. When the defendants, nevertheless, initiated proceedings to dismiss the plaintiffs for failure to comply with the residency requirement, a further temporary injunction was ordered on July 20, 1976, prohibiting such proceedings.
While the temporary injunctions remained in force, the collective bargaining agreement with the policemen was being renegotiated for an additional period. The policemen’s union, Local 1159 of the American Federation of State, County and Municipal Employees, AFLCIO, and the city proceeded through the various stages of negotiation, factfinding and mediation as provided by General Statutes §§ 7-469, 7-473, and 7-473b. The city insisted upon inclusion of a residency clause in the agreement
After the award had been made, the city moved for dissolution of the temporary injunctions that had been issued in 1976 upon the ground that they interfered with implementation of the collective bargaining agreement. A suit was commenced on August 14, 1978, by eleven more members of the Bridgeport police department to enjoin enforcement of the residency clause of the agreement. This case was consolidated with the earlier action, a joint stipulation of facts was filed and the cases were tried together. The court found the issues in both cases for the defendants and rendered judgment accordingly.
In this appeal the plaintiffs claim the trial court erred in concluding: (1) that the plaintiffs, by requesting binding arbitration pursuant to § 7-473c, had waived the right to challenge the constitutionality of that statute and of the residency provision contained in the award; (2) that the municipal employment binding arbitration statute was constitutional; (3) that the residency requirement of the award as well as the residency ordinance
We disagree with the conclusion of the trial court that, because it was the union representing the plaintiffs as members of the Bridgeport police department in the collective bargaining process that requested binding arbitration pursuant to § 7-473c after an impasse had been reached in negotiations with the city, the plaintiffs must be deemed to have waived any challenge to the constitutionality of that statute. The court relied upon the principle that “one who voluntarily proceeds under a statute and claims benefits thereby conferred will not be heard to question its constitutionality in order to avoid its burdens.” 16 Am. Jim. 2d, Constitutional Law § 209. “Nor can one who avails himself of the benefits conferred by a statute deny its validity.” Buck v. Kuykendall, 267 U.S. 307, 316, 45 S. Ct. 324, 69 L. Ed. 623 (1925). This court has applied this estoppel doctrine to bar a party who has sought the relief provided in an ordinance or statute from later in the same proceeding raising the issue of its constitutionality. Florentine v. Darien, 142 Conn. 415, 428, 115 A.2d 328 (1955); Strain v. Zoning Board of Appeals, 137 Conn. 36, 38, 74 A.2d 462 (1950); Holley v. Sunderland, 110 Conn. 80, 85, 147 A. 300 (1929).
The rule is plainly inapplicable to the situation presented by this case. The union’s request for binding arbitration was made three weeks before such arbitration would have been automatically imposed on the parties by the terms of § 7-473c (a): “If, within ninety days after the expiration of the current collective bargaining agreement . . . neither the municipal employer or the municipal employee organization has requested the arbitration services of the state board of mediation and arbitration, said board shall notify the municipal employer and municipal employee organization . . . that binding and final arbitration is now imposed on
II
The plaintiffs attack the constitutionality of § 7-473c upon two grounds: (1) that it violates the “home rule” provision of our state constitution, article tenth, § 1; and (2) that it constitutes an invalid delegation of legislative power. We reject both of these contentions.
A
The first part of the home rule provision of our constitution authorizes the General Assembly by general law to delegate “such legislative authority as from time to time it deems appropriate to towns, cities and boroughs relative to the powers, organization, and form
In Caulfield v. Noble, supra, we held that a state statute of general application requiring the use of surplus funds by a town at the end of its fiscal year to reduce the taxation rate for the following year could not, by virtue of the autonomy given to towns in the matter of real property taxation, override a home rule charter provision allowing the surplus to be retained in a special unallocated account. From this precedent the plaintiffs argue that setting conditions of employment for municipal employees is also a matter of purely local concern that can be delegated only to the municipality under the home rule constitutional provision and not to “politically unaccountable private arbitrators.” Unlike Caulfield, however, the plaintiffs point to no specific provision of the Bridgeport charter that conflicts directly with either the arbitration procedure followed or the outcome thereof in the form of a residency clause. Presumably they rely upon the general authority
It is clear that § 7-473c, being a statute applicable to every municipality in this state, does not violate the prohibition against “special legislation relative to the powers of any single town. . . . ” The remaining consideration is whether its purpose or its operation involves subjects of purely local concern, as in Caulfield. The evident purpose of the compulsory arbitration feature of § 7-473c is to avoid strikes and their attendant disruptions of municipal services by providing a mechanism to resolve by arbitration those issues concerning which the parties to an expiring municipal collective bargaining agreement have been unable to reach agreement by negotiations. Such possible disruptions, at least where such vital services as those performed by policemen are involved, are matters of statewide concern not only because their impact is seldom confined exclusively to the residents of one municipality, but also because the state as parens patriae has the ultimate responsibility for protecting the safety of the inhabitants of even a single community whose own resources are inadequate for the task. Accord General Statutes §§ 29-5, 29-7. The avoidance of strikes by municipal employees that might occasion state intervention to protect the inhabitants of a community is unquestionably a matter of statewide concern and § 7-473c, therefore, does not violate the home rule provision of our state constitution.
The plaintiffs also attack § 7-473c as an unconstitutional delegation of legislative power because: (1) the arbitrators are not public officials accountable to the electorate; (2) the statute contains standards insufficient to guide the arbitrators in making their award; and (3) it fails to provide an adequate procedure for judicial review. None of these claims is persuasive.
Section 7-473c (a) contains no restrictions or qualifications for the three arbitrators who form the panel to decide the issues in a dispute over a new collective bargaining agreement for municipal employees. The statute allows the “chief executive officer of the municipal employer” to name one member, the “executive head of the municipal employee organization” to choose a second, and the two arbitrators thus designated to select the third, who acts as chairman. The plaintiff claims that this statutory delegation of legislative power to persons having, by virtue of their selection as arbitrators, only a tenuous connection with government that is limited to the duration of the performance of their duties in the dispute referred to them violates a basic principle that determinations having the force of law should be made only by those who are in some manner accountable to the electorate. It has been contended that “this approach to legislative decision-making, precisely because it is designed to insulate and, in fact, does insulate the decision-making process and the results from accountability within the political process, is not consonant with proper governance and is not an appropriate method for resolving legislative-political issues in a representative democracy.” Dearborn Fire Fighters Union v. Dearborn, 394 Mich. 229, 258, 231 N.W.2d 226 (1975) (opinion of Levin, J.). The majority of courts, nevertheless, have sustained statutes imposing compulsory arbitration to resolve dis
In this state the delegation of the governmental power of eminent domain to private persons rather than to public officials has frequently been approved where a public purpose is thereby advanced and where the benefit of the property taken is considered to be available to the general public. Connecticut College v. Calvert, 87 Conn. 421, 427-28, 88 A. 633 (1913); cf. New York, N.H. & H. R. Co. v. Long, 69 Conn. 424, 435, 37 A. 1070 (1897); Evergreen Cemetery Assn. v. Beecher, 53 Conn. 551, 5 A. 353 (1886); Todd v. Austin, 34 Conn. 78, 89-91 (1867). “The legislature itself may exercise the power or may delegate that right to another.” Northeastern Gas Transmission Co. v. Collins, 138 Conn. 582, 587, 87 A.2d 139 (1952). We have also upheld the statutory designation of a private credit corporation as the sole agency to investigate applications for mortgages to be insured through the credit of the state, the ultimate authority to grant such applications being retained by a state agency. Roan v. Connecticut Industrial Building Commission, 150 Conn. 333, 342-43, 189 A.2d 399 (1963). We perceive no inherent vice that should preclude enlistment by the legislature of private individuals or agencies to achieve a public purpose by the exercise of a governmental power so long as adequate safeguards are provided. Although elected officials and those appointed by them as public officers may be more directly answerable to the electorate for their doings, the principle of accountability remains viable in the ability of legislators to terminate or modify any delegation of legislative power
The claim that the standards prescribed by § 7-473c for guidance of the arbitrators are constitutionally infirm rests upon the principle that, “[i]f the Legislature fails to prescribe with reasonable clarity the limits of the power delegated or if those limits are too broad, its attempt to delegate is a nullity.” State v. Stoddard, 126 Conn. 623, 628, 13 A.2d 586 (1940); see A.L.A. Schechter Poultry Corporation v. United States, 295 U.S. 495, 530, 55 S. Ct. 837, 79 L. Ed. 1570 (1935). The only provision of the statute explicitly setting forth any guidelines is as follows: “The factors, among others, to be given weight by the arbitration panel in arriving at a decision shall include the wages, salaries, fringe benefits and working conditions prevailing in the labor market, the ability of the municipal employer to pay and the interests and welfare of the employees.” General Statutes § 7-473c (c) (2). The plaintiffs criticize this delineation of the criteria to be followed as unduly vague and also point to the absence of any declaration of legislative purpose in the statute.
Where an act does not contain an express statement of its public purpose, we may consider the entire act as well as its legislative history to ascertain such a purpose. Roan v. Connecticut Industrial Building Commission, supra, 339. It is evident from the debate that attended the adoption in 1975 of § 7-473c with its mandatory arbitration feature that the principal concern of the legislators was to devise a method for resolving impasses in contract negotiations between municipal employers and their employees that might otherwise result in strikes or other disruptions of essential public services.
“As the complexity of economic and governmental conditions has increased over the years, courts have tended to approve ever broader standards to facilitate the operational functions of administrative agencies.” Wilson v. Connecticut Product Development Corporation, 167 Conn. 111, 120, 355 A.2d 72 (1974). Given the impracticability of prescribing standards that will precisely govern the outcome of every issue that may arise in contract negotiations between municipal employers and employees, we conclude that those set forth in § 7-473c are sufficient to satisfy constitutional requirements for a valid delegation of legislative power.
The circumstances of this case do not require that we explore fully the extent of judicial review available for decisions resulting from compulsory arbitration under § 7-473c or decide to what extent it is limited to the scope permitted where the parties have voluntarily submitted an issue to the arbitrators. See Bruno v. Department of Consumer Protection, 190 Conn. 14, 18-19, 458 A.2d 685 (1983); Carroll v. Aetna Casualty & Surety Co., 189 Conn. 16, 22-23, 453 A.2d 1158 (1983). In part III of this opinion we do undertake to review the constitutional validity of the residency clause that the arbitrators have chosen to impose as a condition of employment.
Ill
The residency requirement at issue in this case, which is not a prerequisite to municipal employment initially, must be distinguished from the durational residency requirement that was found to impinge upon the fundamental right of travel and thus to violate the equal protection clause of the federal constitution in Bruno v. Civil Service Commission, 192 Conn. 335, 351, 472 A.2d 328 (1984). “Bona fide residency requirements as continuing conditions of municipal employment rest upon footings significantly different from those of durational residency requirements.” Andre v. Board of Trustees, 561 F.2d 48, 52 (7th Cir. 1977). In the Bruno opinion this court differentiated between “a bona fide residency requirement” and “a durational one,” declaring that “[i]f it is important to develop relations between city employees and citizens, then the employee may be required to live within the geographical confines of the city while that employee holds municipal employment.” Id., 351. This dictum in Bruno is not a controlling precedent, however, not only because the circumstances there did not actually present the issue now before us, but also because the opinion is limited to a consideration of only federal constitutional provisions.
The plaintiffs base their attack on the constitutionality of the residency requirement now before us wholly upon article first, §§ 1 and 20, of our state constitution, which generally have been construed to afford the same right to “equal protection of the laws” as is pro
The plaintiffs argue that the right of travel, intrastate as well as interstate, is a fundamental right that includes the right to live where one chooses without restriction and that any impingement upon this right of municipal employees as a class by restricting the location of their residences can be justified only where some compelling state interest is advanced. Thus they claim the benefit of the most exacting standard for review of classifications alleged to violate the constitutional right of equal protection of the laws. They rely upon decisions of New Hampshire courts that have construed state constitutional provisions affording the right of equal protection to invalidate residency requirements, like that involved here, applicable to municipal employees generally. Angwin v. Manchester, 118 N.H. 336, 386 A.2d 1272 (1978); Donnelly v. Manchester, 111 N.H. 50, 274 A.2d 789 (1971). Most courts, however, have found no infringement of the fundamental right to
It must be conceded that “[e]ven a bona fide residence requirement would burden the right to travel, if travel meant merely movement.” Memorial Hospital v. Maricopa County, 415 U.S. 250, 94 S. Ct. 1076, 39 L. Ed. 2d 306 (1974). The right to travel that has been found to be “fundamental,” and thus to necessitate demonstration of a compelling state interest for maintenance of any governmental restraint thereon, involves much more than locomotion. Id., 254. It concerns the right “to migrate, resettle, find a new job, and start a new life.” Shapiro v. Thompson, 394 U.S. 618, 629, 89 S. Ct. 1322, 22 L. Ed. 2d 600 (1969). It is the barriers to such resettlement raised by durational residency requirements as qualifications for receiving benefits or exercising privileges that have been found to have such serious impact as to infringe upon the constitutional right to travel. Memorial Hospital v. Maricopa County, supra, 254-55; Dunn v. Blumstein,
We see no reason to give the equal protection clauses of our state constitution in this instance a more expansive reading than has been accorded to the corresponding provisions of our federal constitution. Nothing in their language or history supports the plaintiffs’ contention that a person has a fundamental right to employment by a municipality without regard to the location of his residence. See McCarthy v. Philadelphia Civil Service Commission, supra, 646. Accordingly, since no fundamental constitutional right is implicated by the residency requirement, it is not essential for the city to demonstrate a “compelling” interest to sustain its validity.
The plaintiffs, as a fall-back position, urge that, if the right of a municipal employee is not deemed to be “fundamental” and thus to invoke the “strict scrutiny” standard of review applicable to rights so characterized, it is of sufficient importance to call for an intermediate standard and not merely the minimal “rational basis” test. Courts have tended to depart from the minimal standard where the interests affected by the governmental restriction are sufficiently elevated in the hierarchy of social values and to devise various formulae less rigid than the compelling state interest criterion that essentially necessitate balancing private against governmental concerns with varying degrees of deference to legislative judgment. Tribe, American Constitutional Law § 16-30; see Plyler v. Doe, 457 U.S. 202, 216-26, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982). This
Situations triggering such intermediate review, other than sensitive classifications relating to stereotypes or disadvantaged minorities, have usually involved a significant interference with liberty or the denial of benefits considered to be vital to the individual. Tribe, American Constitutional Law § 16-31. Even if we were to deem such an intermediate standard appropriate in reviewing this claimed infringement on the liberty of a person to live where he chooses while maintaining employment with a municipality, we would also conclude that, at least with respect to policemen such as the plaintiffs, the interests of the municipality in imposing residency as a condition of employment far outweigh the liberty interest asserted. For municipal employees in general, a residence requirement has been found to promote such governmental interests as “ethnic balance in the community; reduction in high unemployment rates of inner-city minority groups; improvement of relations between such groups and city employees; enhancement of the quality of employee per
Finally, the plaintiffs claim that the city is estopped from now imposing by means of a collective bargaining agreement a residency requirement upon policemen, when for more than forty years it has failed to enforce a similar requirement of a city ordinance applicable to all municipal employees. The stipulation of facts presented to the trial court indicates that each of the plaintiffs was first employed as a policeman while a resident of Bridgeport at some time after the adoption of the municipal employee residency ordinance in 1933. While so employed each of them later established a home outside the city, despite knowledge of the residency ordinance. These individuals were aware that many other policemen, including superior officers, did not reside in Bridgeport. They continued to maintain with the police department Bridgeport addresses and telephone numbers, usually those of relatives through whom they could be contacted. Each also informed some of his superior officers of his out-of-town residence and telephone number. The amount of time spent at his Bridgeport address by each plaintiff varies from several nights per week to virtually none. Some of the plaintiffs vote as residents of Bridgeport in accordance with their addresses as maintained with the police department; some pay taxes to Bridgeport on motor vehicles registered to them at those addresses. The extent to which the plaintiffs have reasonably relied upon the inaction of the city in enforcing the residency ordinance against them and other municipal employees is disputed.
The memorandum of decision does not address the merits of the estoppel claim of the plaintiffs, apparently because the trial court felt the issue had been foreclosed by the arbitration award, in which it found the plaintiffs to have participated voluntarily. Although we have
If the city had never enacted a residency ordinance it would not have been precluded from seeking through the collective bargaining process the inclusion of a residency requirement for policemen as a condition of employment. Any claim of estoppel because of the absence of such a requirement during the prior employment of policemen who resided outside the city would be without merit. No more valid bar to action deemed to be in the best interests of the city is raised by the fact that for forty years an ordinance has remained in existence that the plaintiffs by various subterfuges have evaded, even though superior officers may have been aware of their duplicity.
Although we have concluded that the city was not precluded from seeking a residency requirement for policemen through collective bargaining and that the arbitrators did not exceed their powers by choosing that proposal over the one advanced by the plaintiffs’ representative, we do not purport to resolve in this opinion all of the issues which may arise in the implementation of that provision of the collective bargaining agreement. Some courts have found an impair
There is no error.
In this opinion the other judges concurred.
It is not clear from the record whether the arbitration award in this case was rendered pursuant to General Statutes § 7-473c, entitled “Mandatory binding arbitration following expiration of collective bargaining agreement or for contract reopener provisions; procedure; apportionment of costs,” or General Statutes § 7-474 (h) through (j), which makes the same binding arbitration procedure available upon request of either party after rejection of the report of the factfinder. The complaints and the memoran
The brief of the intervening plaintiffs, who are also Bridgeport policemen residing outside the city, claims that “the attempt to obtain a residency clause through binding arbitration appeared to be an attempt to evade” the temporary injunction issued by the Superior Court. Although the defendants were enjoined from enforcing against the plaintiffs the residency requirement of the city ordinance “in any manner,” we do not view the attempt to obtain such a residency provision as part of a collective bargaining agreement, whether by negotiation or by arbitration, as enforcement of the residency ordinance in violation of the injunction.
Although the trial court upheld the validity of both the residency ordinance applicable to municipal employees generally and the residency requirement contained in the arbitration award affecting only policemen, we limit our consideration of the residency issue solely to the award. It appears that all of the plaintiffs are bound by the collective bargaining agreement to which the award relates. We need not, therefore, consider the validity of the residency requirement contained in the ordinance. Since other municipal employees not affected by the award may have different interests not represented in this litigation, it would be inappropriate in this case to go beyond the narrower issue presented by the residency clause of the award affecting only policemen.
This conclusion makes it unnecessary to address other grounds for the inapplicability of the estoppel principle which the trial court applied. The complaint in Docket No. 9574 does not purport to attempt to vacate the award pursuant to General Statutes § 52-418, but to enjoin its enforcement on constitutional grounds. The plaintiffs’ complaint on its face cannot be characterized as an attempt to question the validity of a statute under which a benefit has been sought “later in the same proceeding.” See Florentine v. Darien, 142 Conn. 415, 428, 115 A.2d 328 (1955); Newington v. Mazzoccoli, 133 Conn. 146, 153-54, 48 A.2d 729 (1946). The complaint in Docket No. 9575 was filed long before the arbitration award and challenged the validity of the residency ordinance. “The rule would have no application to an independent proceeding challenging the constitutionality of a zoning regulation or ordinance.” Florentine v. Darien, supra, 428.
18 S. Proc., Pt. 7, 1975 Sess., pp. 3506-59.
As noted previously in footnote 4, supra, neither action before us is an attempt to vacate the award of the arbitrators pursuant to § 52-418. The defendants do not contest the propriety of these independent actions, one of which seeks to enjoin enforcement of the residency clause in the award and the other enforcement of the residency ordinance. Obviously, if review of the constitutional issues raised by the residency requirement is permissible in these independent actions, it would make little sense to preclude it in an action to vacate the award pursuant to § 52-418.
See footnote 3, supra.