Park v. Lansing Board of Education , 32 Mich. App. 752 ( 1971 )

32 Mich. App. 752 (1971) 189 N.W.2d 60

PARK
v.
LANSING BOARD OF EDUCATION

Docket No. 10083.

Michigan Court of Appeals.

Decided April 23, 1971.

Livingston, Gregory, Van Lopik & Higle, for plaintiffs.

Newman & Mackay, for Lansing Board of Education.

Before: QUINN, P.J., and McGREGOR and O'HARA,^[*] JJ.

QUINN, P.J.

On defendants' motion, the trial court dismissed plaintiffs' complaint which sought to restrain defendants from enforcing policy rule No 4116.5 adopted by the Board of Education on or about July 17, 1969. Plaintiffs appeal.

Plaintiffs filed this action April 24, 1970. At that time, all plaintiffs were administrative employees of the school district who lived outside the geographical boundaries of the district. The policy rule involved reads:

"Professional personnel holding administrative positions in the Lansing School District shall reside within the school district.

"A professional staff member who now holds an administrative position and resides outside of the Lansing School District shall establish residence in Lansing School District not later than July 1, 1970, or his or her appointment will be terminated, except that this provision shall not apply to persons who held an administrative position prior to July 1, 1962, and have continuously resided outside of the district since July 1, 1962.

"The holder of an administrative position who moves his residence from within the Lansing School District shall have automatically terminated his appointment.

"The appointment of a professional staff member who resides outside of the Lansing School District to an administrative position or promotion of such staff member to another administrative position shall be temporary and shall be terminated if such professional staff member does not establish residence in the Lansing School District within one year from the date of the appointment."

There is no similar rule for other employees of the school district.

Plaintiffs were on one-year contracts which expired June 30, 1970, and they did not have tenure. They were not rehired, and on the basis of Wedin v. Atherholt (1941), 298 Mich. 142, defendants contend this case is moot. We do not so view it. Plaintiffs filed this action as employees. There is no indication in the record that they were not rehired for any reason except their failure to comply with the policy rule, the validity of which they contest. Plaintiffs had, and they still have, a justiciable issue.

In support of their appeal, plaintiffs first contend that the policy rule denies them due process. We read Williams v. Civil Service Commission of the City of Detroit (1970), 383 Mich. 507, to hold otherwise. If the question of the beneficial effect of a residence requirement for public employees on public employment services is reasonably debatable, substantive due process is not violated, Williams, supra. On this record, that question is reasonably debatable and we find no violation of substantive due process.

Plaintiffs next contend that the policy rule denies them equal protection because there is no reasonable justification for the cutoff date of July 1, 1962, and, hence, unwarranted discrimination occurs between persons employed before July 1, 1962, and persons employed thereafter. There is an indication in the argument before the trial judge that there is some justification for this cutoff date. It may bear some reasonable relation to the intended purpose of the residency rule. See Beauty Built Construction Corporation v. City of Warren (1965), 375 Mich. 229, 235. The trial judge did not rule on the reasonableness of the justification, and on the present record we are unable to do so.

Reversed and remanded for factual findings and conclusions of law on the question of whether or not the cutoff date of July 1, 1962 bears some reasonable relation to the intended purpose of the residence policy rule. An affirmative finding will support the validity of the rule. If the finding is negative, the rule is invalid. Beauty Built Construction Corporation, supra. We do not retain jurisdiction.

Reversed and remanded without costs.

All concurred.

NOTES

[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.