John B. Kiel v. CITY OF KENOSHA, NICK E. ARNOLD, CHUCK GRAPENTINE, and JOSEPH KISER

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2651
JOHN B. KIEL,
Plaintiff-Appellant,
v.
CITY OF KENOSHA, NICK E. ARNOLD,
CHUCK GRAPENTINE, and JOSEPH KISER,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 00 C 782--John W. Reynolds, Judge.
Argued NOVEMBER 7, 2000--Decided DECEMBER 8, 2000
Before BAUER, COFFEY, and EASTERBROOK,
Circuit Judges.
COFFEY, Circuit Judge. On May 30, 2000,
John Kiel, a firefighter employed by the
City of Kenosha, Wisconsin, filed a
complaint under 42 U.S.C. sec. 1983
alleging that the City’s residency
requirement violated the equal protection
clause of the Fourteenth Amendment./1
Kiel also filed a motion for a
preliminary injunction requesting that
the court enjoin the defendants from
enforcing the residency requirement. The
trial court denied Kiel’s motion for a
preliminary injunction, concluding that
the plaintiff had very little chance of
success on the merits. Kiel filed an
interlocutory appeal, and we affirm./2
The facts of this case are
straightforward. Kiel and his fiancee
wanted to buy a house in Racine County
and live there but could not because, as
a Kenosha firefighter, Kiel was required
to reside in Kenosha County. On May 19,
2000, Kiel, despite the residency
requirement, made an offer on a house in
Caledonia, Wisconsin, which is in an
adjacent county known as Racine County,
and sought a waiver of the residency

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requirement from the City Administrator,
Nick Arnold./3 On May 22, 2000, Kiel
sent another letter to Arnold informing
him that Kiel’s offer to purchase the
Caledonia property was accepted, but was
contingent on Kiel’s ability to obtain a
waiver of the residency requirement. In a
joint letter, Kiser and Grapentine denied
Kiel’s request for a waiver of the
residency requirement. In a separate
letter, Arnold also denied Kiel’s
request. Instead of accepting the City’s
decision, Kiel brought this suit and
sought a preliminary injunction barring
the enforcement of the residency
requirement. As stated above, the trial
judge denied the motion for a preliminary
injunction, holding that Kiel had little
chance of succeeding on the merits of his
claim. Kiel appeals.
The sole issue on appeal is whether the
trial judge acted correctly in denying
Kiel’s preliminary injunction motion. In
reviewing a denial of a preliminary
injunction, we review the district
court’s findings of fact for clear error,
its balancing of the factors for a
preliminary injunction under the abuse of
discretion standard, and its legal
conclusions de novo. Platinum Home
Mortgage Corp. v. Platinum Fin. Group,
Inc., 149 F.3d 722, 726 (7th Cir. 1998).
In assessing whether a preliminary
injunction is warranted, a court must
consider whether the party seeking the
injunction has demonstrated that: 1) it
has a reasonable likelihood of success on
the merits of the underlying claim; 2) no
adequate remedy at law exists; 3) it will
suffer irreparable harm if the
preliminary injunction is denied; 4) the
irreparable harm the party will suffer
without injunctive relief is greater than
the harm the opposing party will suffer
if the preliminary injunction is granted;
and 5) the preliminary injunction will
not harm the public interest. Id./4 As
the district court concluded, Kiel has so
little chance of success on the merits of
his case that the granting of a
preliminary junction in this instance
would be inappropriate.
Initially, the Supreme Court, in
McCarthy v. Philadelphia Civil Service
Commission, 424 U.S. 645 (1976) and
Detroit Police Officers Ass’n v. City of
Detroit, 405 U.S. 950 (1972), recognized
the right of municipalities to condition

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employment with continued residency in
the city. See also Joel E. Smith,
Validity, Construction, and Application
of Enactments Relating to Requirement of
Residency Within or near Specified
Governmental Unit as Condition of
Continued Employment for Policemen or
Firemen, 4 ALR 4th 380 (1981). As the
parties stipulated at oral argument, the
City of Kenosha could have enacted an
even more stringent residency
requirement; that is, one which required
its firefighters to live within the city
limits of Kenosha rather than within the
parameters of Kenosha County.
The appellant attempts to get around
this concession by arguing that the
requirement that Kenosha firefighters
reside in Kenosha County irrationally
distinguishes between those individuals
who wish to live outside the county and
those who wish to live inside Kenosha
County. Kiel further contends that the
distinction is irrational because the
residence he wishes to purchase in Racine
County is actually closer to the City of
Kenosha than are some of the residences
where he could reside within the limits
of Kenosha County. However, when applying
the "rational basis" test, "statutory
classifications will be set aside only if
no grounds can be conceived to justify
them." McDonald v. Board of Election
Commissioners, 394 U.S. 802, 809 (1969).
The City has set forth a plethora of
rational justifications for the residency
requirement, including improving the
City’s tax base, increasing interest and
participation in Kenosha City and County
events, and providing services (through
more revenue) which benefit Kenosha City
and County residents. Examples of such
benefit are, according to the City,
(a) The County and City fund joint
services, such as dispatch, jail and
evidence retention;
(b) The City and County share a tactical
squad which consists of employees of the
City Police Department and the County
Sheriff’s Department;
(c) The City discontinued its Health
Department and entered into an agreement
through which the County provides health
services to the City. The County has the
authority to adopt and enforce health-
related ordinances in the City;

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(d) The County contributes to the
operation of the City’s Hazardous
Response Team;
(e) From time to time, the City and
County enter into cost sharing agreements
relating to the construction of roads
within the City.
We are of the opinion that these reasons
are more than sufficient to provide a
rational basis for the City’s residency
requirement.
It is important to note that all
interested parties agree that the City of
Kenosha could constitutionally require
its firefighters to live within the
limits of the City. Given that the City
could constitutionally restrict its
employees to an area as small as the City
of Kenosha, it is obviously
constitutional for the City to require
its employees to live in Kenosha County,
a much larger geographical area.
Furthermore, the residency requirement
has been uniformly applied to all the
City’s firefighters and no waiver has
ever been granted. Fifty-two out of
fifty-three fire department employees
reside in Kenosha County. The one Kenosha
firefighter who is living outside Kenosha
County is doing so because of a family
medical situation. However, the
firefighter has never received a waiver
of the residency requirement and is
subject to a pending enforcement action.
Therefore, Kiel cannot (and does not)
claim that the city discriminated against
him in its application of its residency
requirement.
Given that Kiel’s chances of succeeding
on the merits of his claim are so minimal
as to be almost non-existent, we agree
with the trial judge and affirm the
denial of Kiel’s motion for a preliminary
injunction. Kiel will still have his day
in court (this was only the denial of a
preliminary injunction, not a grant of
summary judgment), but his case is
extremely weak.
The decision of the district court is
AFFIRMED.
/1 In 1998, the City of Kenosha entered into a

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collective bargaining agreement (CBA) with the
International Association of Fire Fighters, Local
#414. The CBA, which is still in effect, requires
firefighters to reside in Kenosha County:
Personnel of the Fire Department shall reside
within Kenosha County. Any man/woman appointed to
the department and not residing within the afore-
mentioned county upon appointment must do so
prior to the completion of the probationary
period.
/2 This court has jurisdiction pursuant to 28 U.S.C.
sec. 1292(a)(1), which states:
(a) Except as provided in subsections (c) and (d)
of this section, the courts of appeals shall have
jurisdiction of appeals from:
(1) Interlocutory orders of the district courts
of the United States, the United States District
Court for the District of the Canal Zone, the
District Court of Guam, and the District Court of
the Virgin Islands, or of the judges thereof,
granting, continuing, modifying, refusing or
dissolving injunctions, or refusing to dissolve
or modify injunctions, except where a direct
review may be had in the Supreme Court.
/3 Kiel also sent copies of his letter to Chuck
Grapentine, the City’s personnel director, Joseph
Kiser, the fire chief, and Matt Loewen, the
president of Kiel’s Union.
/4 The purpose of a preliminary injunction is to
minimize the hardship to the parties pending
resolution of their lawsuit or arbitration.
Platinum, 149 F.3d at 726; Sauer-Getriebe KG v.
White Hydraulics, Inc., 715 F.2d 348, 351 (7th
Cir. 1983).

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