476 F.2d 187 (1st Cir. 1973), 72-1180, Mancuso v. Taft

Docket Nº:72-1180.
Citation:476 F.2d 187
Party Name:Kenneth R. MANCUSO, Plaintiff, Appellee, v. James L. TAFT, Mayor, et al., Defendants, Appellants.
Case Date:March 20, 1973
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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476 F.2d 187 (1st Cir. 1973)

Kenneth R. MANCUSO, Plaintiff, Appellee,


James L. TAFT, Mayor, et al., Defendants, Appellants.

No. 72-1180.

United States Court of Appeals, First Circuit.

March 20, 1973

Argued Sept. 13, 1972.

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Peter Palombo, Jr., City Sol., with whom Jeremiah S. Jeremiah, Jr., Asst. City Sol., was on brief, for appellants.

Ralph J. Gonnella, Providence, R. I., for appellee.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

COFFIN, Chief Judge.

Kenneth Mancuso, a full time police officer and classified civil service employee of the City of Cranston, Rhode Island, filed as a candidate for nomination as representative to the Rhode Island

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General Assembly on October 19, 1971. On the same day the Mayor of Cranston began the process of enforcing § 14.09(c) of the City Home Rule Charter which prohibits "continuing in the classified service of the city after becoming a candidate for nomination or election to any public office." Mancuso promptly filed suit in the district court seeking relief pursuant to 42 U.S.C. §§ 1981, 1983, and 1988 and asserting jurisdiction under 28 U.S.C. § 1343 and 28 U.S.C. §§ 2201 and 2202. 1 Pursuant to an agreement of the parties, enforcement of the charter was restrained pending resolution of the issue. The appellant mayor subsequently advised appellee that he would impose only a tenday suspension and not dismissal if the suit were unsuccessful. The appellee lost the election. The district court granted appellee's motion for summary judgment on the merits, finding § 14.09(c) violative of the First Amendment, 341 F.Supp. 574 (D.R.I.1972). The city officials appealed. Although we choose to analyze the charter provision in equal protection terms, rather than the First Amendment terms employed by the district court, we affirm its judgment. 2

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At the outset, we acknowledge that our first impression was that while assault on the charter might be made by other city employees seeking office, appellee was in a poor position to complain. He is a policeman, an official called upon for important exercise of discretion, and he ran as a candidate for a partisan nomination for the position of state representative for the very district in which he served as policeman. But several independent reasons, which we deem persuasive, singly and collectively, have led us to the conclusion that appellee's right to raise this equal protection challenge does not depend on the possibility of his conduct being properly proscribed by a more narrowly drawn provision.

First, we are of the opinion, for reasons stated subsequently, that the charter provision significantly affects the exercise of First Amendment rights by Cranston's public employees. In such circumstances, binding precedent-Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); United States v. Raines, 362 U.S. 17, 22, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960); Goguen v. Smith, 471 F.2d 88 (1st Cir. Dec. 14, 1972); see also Muller v. Conlisk, 429 F.2d 901 (7th Cir. 1970)-as well as the sound underlying policy of avoiding the chilling impact of piecemeal adjudication of fundamental rights require consideration of a facial attack by one affected by the regulation. We see no reason why this standing rule should change when First Amendment rights are analyzed in an equal protection context. Grayned v. City of Rockford, 408 U.S. 104, 106-107, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). 3

Second, we believe that both candidates and voters may challenge on its face on equal protection grounds a candidacy restriction because of its impact on voting rights. A candidate for public office, such as the appellee, is so closely related to and dependent upon those who wish to vote for him and his litigation will so vitally affect their rights that courts will relax the rule of practice (which is designed to assure vibrant representation of the vital interests of non-parties) and will permit a candidate to raise the constitutional rights of voters. Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972); Green v. McKeon, 335 F.Supp. 630 (E.D.Mich.1971), aff'd, 468 F.2d 883 (6th Cir. 1972); see generally Eisenstadt v. Baird, 405 U.S. 438, 444-446, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). Moreover, we note that under § 17-14-2, General Laws of Rhode Island, a candidate must himself be a qualified voter in the district which he seeks to represent. Hence, in one sense, appellee seeks only to assert the rights of his own class. That voters and candidates may attack candidacy restrictions affecting voting rights on their face seems indisputable. Bullock, supra; Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971); Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968); Green, supra; Manson v. Edwards, 345 F.Supp. 719 (E.D.Mich.1972) ;

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McKinney v. Kaminsky, 340 F.Supp. 289 (M.D.Ala.1972); Mogk v. City of Detroit, 335 F.Supp. 698 (E.D.Mich.1971) (three-judge court). In this regard, the dissent's disagreement seems to be only with the standard, not the propriety, of review.

Finally, we believe that in any case, whether or not the regulation implicates First Amendment or voting rights, one within the terms of a classification may challenge it facially on equal protection grounds. Although the language of the Raines rule, 362 U.S. at 21, 80 S.Ct. 519, would seem to cover equal protection claims, we find that both precedent and sound policy reject its application. We know of no case in which the Supreme Court has refused to consider a facial equal protection challenge by one within the affected classification. 4 Nor has the Supreme Court explicitly considered whether the claimant could properly be subject to a narrower regulation. Rather, in all cases, the Court has simply analyzed the challenged classification on its face. 5 We believe the Court has eschewed "hard core" analysis in this area because of its invitation to judicial legislation. Facial consideration forces a court to

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analyze and approve (or disapprove) only one regulation-that written by the legislative body. To close the courthouse door on hard core plaintiffs requires a precise determination (and necessarily approval) of the permissible outer limits of narrower legislation. The number of such determinations would be limited only by the number of differently situated plaintiffs. In contrast, facial adjudication requires only consideration of the various factors which suggest the possibility of less drastic alternatives, without forcing specific definition of the permissible limits. Moreover, unlike disorderly conduct, breach of peace, or other roughly defined proscriptions, statutory classifications subjected to equal protection challenge usually leave no question as to the persons subject to the regulation. Individual adjudications would therefore appear unnecessarily to impose repetitive judicial scrutiny and possibly intervention. Ironically, then, in equal protection litigation of broad, unambiguous classifications, judicial restraint would seem to us to require facial rather than individual adjudication. 6 We therefore hold that the appellee has standing.

Standard of Scrutiny

Appellee's complaint, simply put, is that Cranston has divided its citizenry into two groups for purposes of candidacy for public office: in one group, all classified civil servants, who are prohibited from filing as candidates; and, in the other, all other citizens, free to run for office, subject only to general age and similar requirements. In determining the propriety of this discrimination, we must first examine the nature of the interests infringed by§ 14.09(c) to ascertain the proper standard of review.

The Supreme Court has tended to use one of two standards for review

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when determining whether a particular state action violates the equal protection clause of the Fourteenth Amendment. For state action concerning economic regulation and taxation, the Court has employed a relaxed review, upholding the challenged action if it is sustained by some rational and legitimate state interest. See Kotch v. Bd. of River Port Pilot Comm'rs, 330 U.S. 552, 67 S.Ct. 910, 91 L.Ed. 1093 (1947). For state action which substantially infringes fundamental interests, however, the Court has subjected the state action to stricter scrutiny, requiring the state to show that its action is necessary to promote a compelling state interest. 7

In evaluating candidacy restrictions there are two interlocking interests, both fundamental, that must be considered. We naturally consider the rights asserted by the plaintiff in claiming the opportunity to become a candidate for public office. But whenever a state or city regulates the right to become a candidate for public office, it also regulates the citizen's right to vote; the person or persons whose candidacy is affected may be the voters' choice for public official. As Chief Justice Burger stated in the recent case of Bullock v. Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 856, 31 L.Ed.2d 92 (1972), "[T]he rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters." Therefore, in order to properly consider the impact of the Cranston charter provision and hence to arrive at a standard of review, we consider also the public interest in an unhampered, unconditioned vote, as reflected here by the voters' interest in having a broad pool of candidates from which to select their public officials. Because guidance from the Supreme...

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