Number 11 November 15, 1972

Number 11 November 15, 1972 Mrs. Mabel A. Campbell Director of Civil Service 294 Washington Street Boston, Massachusetts 02108 Dear Mrs. Campbell: You have requested my opinion whether the present statutory and regulatory provisions which require that applicants for civil service em- ployment be United States citizens are constitutional, and, if not, whether you may insert a statement on examination announcements that applicants must reside in the United States. You further ask whether the requirements relating to domicile are constitutional. For the reasons stated hereinafter, I conclude that the statutory and regulatory require- ments that applicants for civil service employment be citizens of the Commonwealth or of its cities and towns are unconstitutional. General Laws, c. 31, § 12. provides, in pertinent part: "The director shall not place on any such list [for civil service employment] any person not a citizen of the United States." Civil Service Rule 4 provides, in pertinent part: "An applicant at the time of filing application for any office or position to which these rules apply must be a citizen of the United States who has domiciled in the Commonwealth for one year next preceding the date of filing his application. An applicant for an office or position in the service of a city must also have domiciled in the city in which he seeks service for six months next preceding the date of filing his application. General Laws, c. 31. § 19 provides: "Except as otherwise provided by law, in all positions, employments and work in any branch of the service of the commonwealth, or of any county, city, town or district therein, persons who are domiciled in the commonwealth shall be given preference; provided, when the director waives domiciliary requirements in accordance with the civil service rules or the provisions of section eight B, any person who does not have a domicile in the commonwealth and who otherwise qualifies shall be placed on the eligible list in ac- cordance with the civil service laws and rules." 62 P.D. 12 Resolution of your questions requires a brief review of recent deci- sions of the Supreme Court of the United States involving the validity of durational residency and citizenship requirements as they relate to gov- ernmental benefits, privileges or rights. In Shapiro v. Thompson, 394 U.S. 618, the Court held that durational residency requirements are un- constitutional unless the State can demonstrate that such requirements are ''necessary to promote a compelling governmental interest." Id. at 634, emphasis in original. Recently, in Dunn v. Blumstein, 405 U.S. 330, the Court struck down a Tennessee durational residency requirement for voting and reaffirmed the ''compelling governmental interest" standard. The Court stated: "It is not sufficient for the State to show that durational residency requirements further a very substantial state in- terest. In pursuing that important interest, the State cannot choose means which unnecessarily burden or restrict con- stitutionally protected activity . . . And if there are other, reasonable ways to achieve those goals with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference. If it acts at all, it must choose 'less drastic means' . . ." /(/. at 343. These principles have been carried out in decisions of the lower Fed- eral courts. For example, in Stevens v. Campbell, 332 F. Supp. 102 (D. Mass. 1971), the District Court struck down the Massachusetts statute which provided that veterans must satisfy certain domicile or residence requirements in order to obtain veterans' preference for civil service employment. While not expressing any opinion as to Rule 4, since that issue was not before the Court, the Court did state in the course of its opinion that "it would not be constitutionally permissible for Massachu- setts to make a right or privilege depend upon the mere fact that the re- cipient was one of Massachusetts' own people who presumptively had contributed his taxes or services to the Commonwealth. Shapiro v. Thompson, 394 U.S. 618, 632-633 (1969)." Id. at 106. In Graham v. Richardson, 403 U.S. 365, a unanimous Supreme Court declared that state statutes which denied welfare benefits to resident aliens or to aliens who had not resided within a state for a specified period are violative of the Equal Protection Clause and interfered with the exclusive control of immigration exercised by the Federal govern- ment. Speaking for the Court, Mr. Justice Blackmun stated: "State alien residency requirements that either deny wel- fare benefits to noncitizens or condition them on longtime res- idency, equate with the assertion of a right, inconsistent with federal policy, to deny entrance and abode. Since such laws encroach upon exclusive federal power, they are constitu- tionally impermissible." Id. at 380. The Graham decision has been carried to its logical extension in so far as governmental employment is concerned by a three judge Federal District Court sitting in New York. In Dougall v. Sugarman, 339 F. P.D. 12 63 Supp. 906 (S.D. N.Y. 1971 ), the Court struck down that provision of the New York Civil Service law which required that applicants for civil service employment be United States citizens. Citing Grahani. the Court concluded that the requirement was not justified on either loyalty or efficiency grounds and that it conflicted with the Equal Protection Clause of the Fourteenth Amendment, the Supremacy Clause of the Federal Constitution and the provisions of 42 U.S.C. § 1981. While the Supreme Court has noted probable jurisdiction in the case. 407 U.S. 908. it is my view that the decision of the District Court will be affirmed on appeal. The cases to which I have referred inescapably lead to the conclusion that durational residency and citizenship requirements arbitrarily im- posed as a condition of civil service employment are unconstitutional. Referring specifically to your question, it is my opinion that you may not insert any statement on examination announcements that applicants must be citizens of the United States. While it might be desirable to im- pose a requirement that applicants be residents of the United States at the time of application, 1 find that no such requirement is imposed at this time either by statute or by rule of the Commission. The Civil Service Commission should promptly amend its Rule 4 in this respect, if such a requirement is to be imposed in the future. In this respect, the Commis- sion should consider whether such a requirement is necessary to pro- mote a compelling governmental interest, and, if it is in some case, what criteria should be employed by the Director in imposing it. Any amend- ment to the Rule should reflect the criteria to be used. With respect to your question concerning domicile, it is my opinion that you are prohibited from restricting entrance to any examination on the basis of domicile or from according preference on eligible lists on the basis of domicile on the same bases outlined above. Very truly yours, ROBERT H. QUINN Attorney General Number 12 ^ December 8, 1972 Honorable Miles Mahoney Commissioner of Community Affairs Leverett Saltonstall Building 100 Cambridge Street Boston. Massachusetts 02202 Dear Commissioner Mahoney: You have requested my opinion whether the urban renewal plan for the proposed Park Plaza urban renewal project, which has recently been resubmitted to your Department, is properly before your Department without the Mayor and City Council of the City of Boston having taken any further action thereon. You state that in June, 1972 your Depart- 64 P.D. 12 ment determined, after a public hearing, that it was unable to make cer- tain findings required by G. L. c. 12 IB, § 48 and, therefore, disapproved the Park Plaza urban renewal plan. In making this decision, you inform me that you relied upon and referred to the ''Final Project — Urban Renewal Plan," the supporting documentation, the relocation plan, the cooperation agreement, the resolution adopted by the City Council, and the letter of intent between Urban Associates and the BRA. You further state that the ''Final Project Report — Urban Renewal Plan" included in the Boston Redevelopment Authority's re-submission for the pro- posed Park Plaza project is identical to that earlier approved by the Mayor and the City Council, while various of the other documents, pre- viously referred to, differ in certain respects. Since it is not the province of the Attorney General to determine questions of fact, I am required to accept the facts as you state them. Accordingly, relying on your express representation that the "Final Project Report — Urban Renewal Plan" remains identical, I proceed to answer your question. October 16, 1895, Op. Atty. Gen. 275; June 3, 1897, Op. Atty. Gen. 462. The statute governing approval of urban renewal plans, G. L. c. 121B, § 48, states in pertinent part: "A plan which has not been approved by the department when submitted may be again submitted to it with such mod- ifications, supporting data or arguments as are necessary to meet its objections." It is of course an established principle of statutory construction that a statute must be construed as it is written. C/7v Council of Peabody v. Board ofAppeals of Peabody, 1971 Mass. Adv. Sh. 1881, \^^2; Harvey Alan Gregg, Jr. Foundation v. Commissioner of Corporations and Taxation, 330 Mass. 538, 544. It appears from your request that once you disapproved the urban re- newal plan, the local redevelopment authority took steps to meet your objections to the plan. Those steps included changes in the supporting documents submitted with the original "Final Project Report — Urban Renewal Plan," and those supporting documents, modified and changed in order to meet your objections, have now been submitted along with the "Final Project Report — Urban Renewal Plan" which has, as you have stated, remained unchanged. Under the circumstances, I find no basis in the statute for requiring any further action by the municipal officers who approved the "Final Project Report — Urban Renewal Plan" in the first instance. To require further municipal action where the plan itself remains unchanged is a re- sult which should not be attributed to the Legislature. Haines v. Town Manager of Mansfield, 320 Mass. 140, 142; McCarthy v. Woburn Hous- ing Authority, 341 Mass. 539. Compare September 10, 1957, Op. Atty. Gen. 23. Cf. Commissioner of the Department of Community Affairs v. Boston Redevelopment Authority, and others, 1972 Mass. Adv. Sh. , , (Slip opinion, p. 18), where the Court stated "[t]hat this silence in the statute was intentional is suggested . . ." P.D. 12 65 In conclusion, then, accepting the facts as you recite them, it is my opinion that you may proceed to approve or disapprove the resubmis- sion of the Park Plaza urban renewal plan which is now before you without first referring the same to the Mayor and City Council of the City of Boston. I intimate no opinion whatsoever as to the decision which you should make in your consideration of the resubmitted plan. To do so would be for me to usurp the legislative prerogative and obligation which is yours by virtue of the office you hold, to render proper decisions within the letter and spirit of the Commonwealth's urban renewal statutes. Very truly yours, ROBERT H. QUINN Attorney General