Kansas Attorney General Opinion 1992-089

ROBERT T. STEPHAN
ATTORNEY GENERAL
July 7, 1992
ATTORNEY GENERAL OPINION NO. 92- 89
The Honorable Gwen Welshimer
State Representative, Eighty-Eighth District
6103 Castle
Wichita, Kansas 67218
Re: Constitution of the United States--States'
Relations--Citizenship; Privileges and Immunities;
Cities and Municipalities; Restrictions on
Nonresidents Use of City Owned Lakes
Synopsis: Under a privileges and immunities and equal
protection analysis a city may restrict
nonresidents' use of city parks. In order to pass
constitutional scrutiny, the level of
discrimination must be offset by a reasonable
justification. Cited herein: U.S. Const., art.
4, § 1; Amend. 14th.
Dear Representative Welshimer:
As representative for the eighty-eighth district, you ask our
opinion concerning the constitutionality of a Eureka city
ordinance restricting some aspects of use of the city owned
lake by nonresidents. Specifically you inquire about
ordinance S9-623 which provides:
"BOAT LICENSE: APPLICATION: Any resident of Greenwood
County or lessee of a cabin site at Lake Eureka seeking to
keep, have and maintain any motorboat with a motor of twenty
(20) horsepower or more, upon the lake, may make application

for that privilege to the caretaker, stating the name of the
boat owner, the make, size, capacity, condition and general
description of the boat and furnish proof that the craft is in
safe condition. No such license shall be issued to any person
not a resident of Greenwood County or licensee of a cabin
site at Lake Eureka nor shall any such license be issued
until the owner of such boat shall execute and deliver to the
person issuing the boat license a statement, in writing that
the insurance coverage provided for in section 9-624 of this
article has been obtained and is in full force and affect."
You inform us that this ordinance may have been amended to
change the restriction to 30 horsepower.
In effect, the ordinance permits only residents of Greenwood
county or cabin sight licensees to use boats with motors of 20
(or possibly 30) horsepower or more on the lake, although
presumably nonresidents are allowed boats with motors of
lesser horsepower.
We evaluate this ordinance under two provisions of the United
States constitution, the privileges and immunities clause
under article 4, section 2, and the equal protection clause of
the 14th amendment.
In Toomer v. Witsell, 334 U.S. 385, 68 S.Ct. 1156,
L.Ed.2d 1460 (1948), the Court considered a state statute
which imposed a shrimp fishing license fee on nonresidents
that was 100 times greater than that imposed on residents.
The Court first discussed the privileges and immunities clause:
"The primary purpose of this clause, like
the clauses between which it is
located--those relating to full faith and
credit and to interstate extradition of
fugitives from justice--was to help fuse
into one Nation a collection of
independent, sovereign States. It was
designed to insure to a citizen of State A
who ventures into State B the same
privileges which the citizens of State B
enjoy. For protection of such equality
the citizen of State A was not to be
restricted to the uncertain remedies
afforded by diplomatic processes and
official retaliation."

In Toomer, the Court went on to explain that not all such
discrimination is prohibited:
"Like many other constitutional
provisions, the privileges and immunities
clause is not an absolute. It does bar
discrimination against citizens of other
States where there is no substantial
reason for the discrimination beyond the
mere fact that they are citizens of other
States. But it does not preclude
disparity of treatment in the many
situations where there are perfectly valid
independent reasons for it. Thus the
inquiry in each case must be concerned
with whether such reasons do exist and
whether the degree of discrimination bears
a close relation to them. The inquiry
must also, of course, be conducted with
due regard for the principal that the
States should have considerable leeway in
analyzing local evils and in prescribing
appropriate cures."
In the end the court held the license fees unconstitutional,
finding that under the facts there was a high degree of
discrimination yet little justification for the
discrimination. 334 U.S. at 403. In essence, the Court
balanced the degree of discrimination against the purpose to
determine whether the discrimination was reasonable.
In Baldwin v. Fish & Game Comm'n of Montana, 435 U.S.
371, 98 S.Ct. 1852, 56 L.Ed.2d 354 (1978), the Court again
considered a state statute discriminating against out of state
residents. This time, the question concerned a Montana
statute which set the price of elk hunting permits for
non-Montana residents significantly higher than for Montana
residents. This time the Court considered the
constitutionality of the statute both under the privileges and
immunities clause and the equal protection clause. In its
equal protection analysis, the Court used a "rational basis
test", apparently finding that elk hunting is not so
fundamental a right as to warrant a heightened scrutiny. 436
U.S. at 389-90. The Court upheld the constitutionality of the
statute noting that Montana had a strong interest in
preserving the Elk herd and Montana expended resources in
doing so.

The Eureka ordinance raises a privileges and immunities
question because the ordinance precludes out-of-state
residents from exercising a privilege that some in-state
residents exercise. The ordinance raises an equal protection
question because it creates two classes of people who are
treated differently--Greenwood county residents and
non-Greenwood county residents.
Cases from other states considering analogous facts provide
some guidance. In People v. Kraushaar 89 N.Y.S.2d 685
(1949), the court considered a city ordinance establishing
parking fees at a railway station at $1.00 per year for
residents of the city and two nearby cities and $10.00 per
year for all others. The court noted that a city is permitted
to treat different classes of persons differently so long as
the distinction is based upon some real and substantial
distinction, bearing a reasonable and just relation to the
things in respect to which such classification is
imposed. . . ." 89 N.Y.S.2d at 588. The court held, however,
that the ordinance in question impermissibly discriminated
within a class--nonresidents--by having lower fees for
nonresidents within two nearby cities.
In Schreiber v. City of Rye, 278 N.Y.S.2d 527 (1967), the
court upheld a city ordinance which restricted use of the
municipal pool and golf course to city residents. The city
pointed out that these facilities were paid for and staffed by
the city and had very limited capacities. The court said that
given these reasons, the discrimination against nonresidents
was permissible. See also McClain v. City of South
Pasadena, 318 P.2d 199 (Cal. 1958) (upholding similar
restrictions for similar reasons.)
The use restrictions imposed by the city of Eureka on the
city lake do discriminate. The restrictions, however, are
minimal. Nonresidents are allowed to use the lake, they are
just prohibited from using large motors on the lake. As such,
the only activity prohibited is water skiing, an activity
which is not a fundamental right and does not call for a
"strict scrutiny" equal protection analysis.
We are unaware of the city's reasons for the restrictions and
are not able to offer a definite opinion as to the ordinance's
constitutionality. However, assuming the lake is small and
has a very limited capacity for speeding boats, we are of the

opinion that this would be a sufficient justification and that
the ordinance passes constitutional muster.
Very truly yours,
ROBERT T. STEPHAN
Attorney General of Kansas
Steve Phillips
Assistant Attorney General
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