Kiiskila v. Nichols

• Decision Date: 03 August 1970
• Docket Number: No. 17580.,17580.
• Citation: 433 F.2d 745
• Parties: Carolyn KIISKILA, Plaintiff-Appellant, v. Edwin A. NICHOLS, Clark Clifford, and Headquarters Fifth Army Credit Union, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

433 F.2d 745 (1970)

Carolyn KIISKILA, Plaintiff-Appellant, v. Edwin A. NICHOLS, Clark Clifford, and Headquarters Fifth Army Credit Union, Defendants-Appellees.

No. 17580.

United States Court of Appeals, Seventh Circuit.

August 3, 1970.

Kenneth K. Howell, Chicago, Ill., for plaintiff-appellant.

William J. Bauer, Thomas A. Foran, U. S. Attys., Michael B. Cohen, Asst. U. S. Atty., Chicago, Ill., for defendants-appellees; John Peter Lulinski, Michael B. Nash, Asst. U. S. Attys., of counsel.

Before SWYGERT, Chief Judge, and KILEY, FAIRCHILD, CUMMINGS, and KERNER, Circuit Judges.

SWYGERT, Chief Judge.

Plaintiff, Carolyn Kiiskila, brought this action to test the validity under the first and fifth amendments of an order issued by defendant, Colonel Edwin A. Nichols, permanently excluding her from Fort Sheridan Military Reservation. The district court denied Kiiskila's motion for a preliminary injunction restraining enforcement of the exclusion order and granted summary judgment for the defendants. On appeal this court affirmed the district court's ruling with one judge dissenting. Subsequently, we granted plaintiff's petition for rehearing en banc. We reverse and order that plaintiff be readmitted to Fort Sheridan.

The facts are not in dispute. Carolyn Kiiskila is a civilian who was employed at the Fort Sheridan Military Reservation as office manager of a credit union. She is a former WAC and a member of Veterans for Peace in Vietnam. As part of its efforts to achieve peace in Vietnam, Veterans for Peace seeks to inform members of the armed forces of their legal rights and to solicit their support for the peace movement.

On October 26, 1968 the Veterans for Peace scheduled a rally for service personnel in Chicago. On October 23 Kiiskila in a casual conversation on the post mentioned the rally to a Lieutenant O'Neal. She informed him that she would be chairwoman at the rally and gave him a ticket to attend the meeting.

On October 24 plaintiff distributed literature concerning the rally at locations near, but not on, the Great Lakes Naval Station. That evening she returned to Fort Sheridan accompanied by a serviceman. Upon entering the post she was stopped by military police. Her car was searched and about fifty pounds of anti-Vietnam war literature were discovered in the trunk. Much of the literature allegedly had been in Kiiskila's car for several months. Plaintiff was interrogated and then escorted off the base.

On October 28 Colonel Nichols, the commanding officer at Fort Sheridan, issued an order permanently excluding Kiiskila from the post. No hearing was held prior to the issuance of his order. The purported basis for plaintiff's exclusion was that "on or about 24 October 1968 Kiiskila engaged in conduct prejudicial to good order and discipline and the accomplishment of my military mission." In the district court Colonel Nichols testified that he issued the exclusion order because he concluded from events occurring on October 23 and October 24 that plaintiff "would attempt to distribute this literature on the post in violation of Fort Sheridan Regulation 27-1." Regulation 27-1 prohibited "Picketing, demonstrations, sit-ins, protest marches, political speeches, and similar activities."

As a result of plaintiff's exclusion from the post she was unable to perform her duties and her employment was terminated. Her civilian employers stated that they dispensed with her services "with reluctance" and only because the "military authorities have made it impossible to retain her."

The district court, relying primarily upon Cafeteria and Restaurant Workers Union, Local 473, AFL-CIO v. McElroy, 367 U.S. 886, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961), held: (1) that Colonel Nichols was empowered to exclude Kiiskila from the base without a hearing; (2) that the failure to provide a hearing did not violate due process; and (3) that plaintiff's exclusion from the base did not violate her rights under the first amendment. We are not convinced that the Cafeteria Workers case necessarily compels the conclusion that Colonel Nichols was empowered to exclude plaintiff from Fort Sheridan without a hearing¹ and that the absence of a hearing comports with due process under the fifth amendment.² We need not decide these questions, however, since we grant the full relief requested by plaintiff on the ground that her exclusion from Fort Sheridan and the concomitant loss of her civilian employment violated her rights to freedom of speech and association under the first amendment.

I

Defendants assert at the outset that plaintiff's first amendment rights are not involved in this case since "she is in no way prohibited from continuing her activities against the war in Vietnam; all she is prohibited from doing is entering Fort Sheridan." This statement echoes Mr. Justice Holmes' assertion that "the petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman." McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 N.E. 517 (1892). As we shall demonstrate, broad assertions of this sort do not constitute an appropriate standard for determining constitutionality and in fact serve only to obfuscate required analysis and consideration of competing private and public interests.³ In analyzing the questions involved in the instant case we must, therefore, define carefully the interest of plaintiff deprived by Colonel Nichols' order and avoid denominating it by conclusionary characterizations such as right or privilege.

The interests of plaintiff affected by defendants' actions extend considerably beyond her access to Fort Sheridan. She was employed at a credit union on the base. In permitting the credit union to operate at Fort Sheridan, the Army undoubtedly contemplated that access to the base would be required by civilian employees including Kiiskila. Moreover, it also must have been aware that termination of a civilian employee's access to the base would result in the loss of his employment. Thus, in terms of the interests of both plaintiff and the Army, the exclusion order in this case is essentially equivalent to dismissal of a person from government employment. Cafeteria & Restaurant Workers Union v. McElroy, supra at 896, 81 S.Ct. 1743.⁴ When so viewed, plaintiff's claim that her exclusion was predicated on her antiwar activities demands careful scrutiny under the first amendment.

The constitutionality under the first amendment of discharge from public employment depends ultimately upon weighing the interests of the individual against those of the state. In such an equation particularly great emphasis must be placed upon the interest of society in encouraging free exchange of ideas. Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L. Ed.2d 811 (1968); United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L. Ed.2d 508 (1967); cf. Bond v. Floyd, 385 U.S. 116, 87 S.Ct. 339, 17 L.Ed.2d 235 (1966). That interest was best described by the Supreme Court in New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 720, 11 L.Ed.2d 686 (1964), as "a profound national commitment to the principle that debate on public issues be uninhibited, robust and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." An essential corollary of this principle is that a citizen is permitted, and even expected, to criticize policy decisions of his government. This includes expressions in opposition to national foreign policy in Vietnam. Bond v. Floyd, supra 385 U.S. at 132, 87 S.Ct. 339. Indeed, because plaintiff is a former WAC and because she comes into personal contact with many members of the armed forces, her criticism of military policy may be especially valued by society. Cf. Pickering v. Board of Education, supra 391 U.S. at 572, 88 S.Ct. 1731. Citizen criticism may be expressed in many forms including, as in this case, distribution of literature to military personnel outside of military installations. Cf. Martin v. City of Struthers, 319 U.S. 141, 146-147, 63 S. Ct. 862, 87 L.Ed. 1313 (1943). As part of the right to engage in criticism of governmental policy, citizens also must be permitted to assemble and join together in groups to achieve their objectives. This protected right of association includes membership in groups such as Veterans for Peace, organized solely to encourage opposition to governmental policy. United States v. Robel, supra 389 U.S. at 263, 88 S.Ct. 419; cf. Cafeteria & Restaurant Workers Union v. McElroy, supra 367 U.S. at 898, 81 S.Ct. 1743.

A citizen's right to engage in protected expression or debate is substantially unaffected by the fact that he is also an employee of the government and, as a general rule, he cannot be deprived of his employment merely because he exercises those rights. This is so because dismissal from government employment, like criminal sanctions or damages, may inhibit the propensity of a citizen to exercise his right to freedom of speech and association. Pickering v. Board of Education, supra 391 U.S. at 574, 88 S.Ct. 1731. To protect society's interest in uninhibited and robust debate the first amendment demands that government be prohibited from inhibiting or suppressing speech by indirection through discharge of a government employee when the same objective could not constitutionally be achieved by criminal sanctions or other direct means. United States v. Robel, supra.

We think the facts of this case entitle plaintiff to protection under these principles. Kiiskila's activities on October 24, including leafletting near the Great Lakes Naval Station and carrying antiwar literature in her car formed the primary basis of Colonel Nichols' order. As we have previously demonstrated, these are activities and forms of expression in which every citizen is free to engage. Secondary emphasis is also placed upon Kiiskila's casual conversation with...