Arceneaux v. Treen, 80-3897

• Decision Date: 22 March 1982
• Docket Number: No. 80-3897,80-3897
• Citation: 671 F.2d 128
• Parties: Edward ARCENEAUX, et al., Plaintiffs-Appellees, v. David C. TREEN, individually and in his capacity as Governor of the State of Louisiana, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 128

671 F.2d 128

Edward ARCENEAUX, et al., Plaintiffs-Appellees, v. David C. TREEN, individually and in his capacity as Governor

of the State of Louisiana, et al., Defendants-Appellants.

No. 80-3897.

United States Court of Appeals, Fifth Circuit.

March 22, 1982.

Patricia Nalley Bowers, Staff Atty., Ronald C. Davis, New Orleans, La., for defendants-appellants.

Mark G. Murov, New Orleans, La., M. David Gelfand, White Plains, N. Y., for plaintiffs-appellees.

Mary E. Howell, New Orleans, La., for Amicus Council 17, American Federation of State, County & Municipal Emp., AFL-CIO.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before BROWN, GOLDBERG and GEE, Circuit Judges.

GEE, Circuit Judge:

This appeal grows out of a class action for declaratory and injunctive relief against enforcement of certain provisions of Louisiana's Dual Office Holding and Dual Employment Law, Act No. 700 of 1979, La.Rev.Stat.Ann. 42:61-66 (West Supp. 1981). The Act's prohibitions on dual public employment are set forth in La.Rev.Stat. 42:63. ¹ More specifically, subsections A and E of section 63 were challenged as violative of the Louisiana Constitution and of the equal protection, due process, and contract clauses of the United States Constitution. Section 63A forbids state or local government employees from working full or part time for either the federal government or for another state government. Section 63E forbids dual "full-time" employment, i.e., more than 35 hours per week at each public sector job. ² Plaintiffs' claims for a permanent injunction and for a declaratory judgment were submitted to the district court, along with a motion for a preliminary injunction pursuant to Fed.R.Civ.P. 65(a)(2). The court deferred consideration of class certification pending its decision on injunctive and declaratory relief. Trial was held on January 16, 1980. The court certified a class consisting of

All persons holding employment (not including full-time appointive office) in any of the branches of government of the State of Louisiana or of a political subdivision thereof and who also hold employment in the government of a foreign country, in the government of the United States, or in the government of another state; and all persons holding full-time employment with the State of Louisiana who also hold full-time employment with a political subdivision thereof, and those holding full-time employment with two political subdivisions.

The named plaintiffs were at all times holders of dual low-level, nonelective jobs with the city, state, or federal governments. ³ None of the named plaintiffs were government officials, and none held two full-time positions with the State of Louisiana. The challenge was therefore directed neither at the Act's ban on multiple elective or appointive positions nor at its prohibition, at section 63B on the holding of two jobs within branches of the Louisiana state government.

The district court held that section 63A and E violated the equal protection clause of the fourteenth amendment to the United States Constitution. Specifically, the court declared:

Subsection (A) of La.Rev.Stat. 42:63 unconstitutional as applied to those holding employment (as opposed to those holding elective or appointive office with the state government or a political subdivision thereof) ... subsection (E) of La.Rev.Stat. 42:63 unconstitutional as applied to those holding full-time employment (as opposed to those holding full-time appointive office) with the State of Louisiana and full-time employment with a political subdivision thereof; and as applied to those holding two full-time employments with a political subdivision of the state.

The governor and attorney general of the State of Louisiana here appeal. We reverse the court's finding of a violation of the equal protection clause.

Equal Protection

The equal protection clause mandates similar treatment of persons in similar situations. ⁴ It is hornbook law that equal protection analysis is traditionally made against the backdrop of two standards, strict scrutiny and minimum rationality. Strict scrutiny, requiring that the challenged statute further a compelling state interest, is "strict" in theory and usually "fatal" in fact ⁵ and "has been reserved for matters involving race, religion, national origin, and characterizations impinging upon 'fundamental rights.' " Seoane v. Ortho Pharmaceuticals, Inc., 660 F.2d 146, 149 (5th Cir. 1981) (footnotes omitted). ⁶ Rational basis scrutiny requires only that the legislative classification rationally promote a legitimate governmental objective. Under the wide scope of discretion afforded states under this test, the constitutional safeguard is "offended only if the classification rests on grounds wholly irrelevant to the achievement of the state's objective." McGowan v. Maryland, 366 U.S. 420, 425, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961). The deference to legislative purpose implicit in this test amounts to a presumption of constitutionality. Id.

In the proceedings below, the district court applied an intermediate level of scrutiny used by the Supreme Court in such cases as Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). ⁷ Applying this "means-ends" scrutiny, the district court defined its task as, first, the examination of the state interest at stake and, second, the testing of the state's ends "to determine whether they are substantially related to the legislative classifications made by the statute."

We find that the district court mistakenly applied this middle tier level of scrutiny to Louisiana's statutory classification. Intermediate means-ends scrutiny has traditionally been applied only to cases involving "suspect" classifications and violations of fundamental rights. See, e.g., Woods v. Holy Cross Hospital, 591 F.2d 1164, 1173 (5th Cir. 1979). Although there is some Fifth Circuit authority that tends to support the proposition that intermediate scrutiny can be triggered if important and not necessarily fundamental rights are at stake, ⁸ three recent opinions have clarified the Supreme Court's "not altogether consistent" ⁹ pronouncements in the area of equal protection analysis. The Court has reaffirmed that, absent an allegation that a legislative classification scheme burdens fundamental rights or creates suspect/quasi-suspect classifications, economic and social legislation are to be examined under the rational-basis standard. Thus, in United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980), the Supreme Court applied the rational-basis test to uphold the 1974 Railroad Retirement Act's grandfather provision, 45 U.S.C. § 231b(h)(1), expressly preserving "windfall" benefits from some classes of employees. Similarly, in Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 101 S.Ct. 715, 66 L.Ed.2d 659 (1981), the Supreme Court applied the same test and upheld a Minnesota statute that banned the retail sale of milk in plastic nonreturnable, nonrefillable containers. The stated purpose of the Minnesota statute was to promote resource conservation and to ease waste disposal problems. In the course of its opinion the Court stated:

Whether in fact the Act will promote more environmentally desirable milk packaging is not the question: the Equal Protection Clause is satisfied by our conclusion that the Minnesota Legislature could rationally have decided that its ban on plastic nonreturnable milk jugs might foster greater use of environmentally desirable alternatives.

Id. at 466, 101 S.Ct. at 725 (emphasis in original). ¹⁰ Finally, in Western & Southern Life Insurance Co. v. State Board of Equalization, 451 U.S. 648, 101 S.Ct. 2070, 68 L.Ed.2d 514 (1981), the Court, in passing upon the constitutionality of California's "retaliatory" tax on certain out-of-state insurance companies, attempted to clarify the nature of the equal protection inquiry:

In determining whether a challenged classification is rationally related to achievement of a legitimate state purpose, we must answer two questions: (1) does the challenged legislation have a legitimate purpose?, and (2) was it reasonable for the lawmakers to believe that use of the challenged classification would promote that purpose?

Id. at 668, 101 S.Ct. at 2083.

Rational-basis scrutiny is applicable here. Plaintiffs do not allege that they belong to a suspect or quasi-suspect class, and the right to hold public employment is not a recognized fundamental right. See, e.g., Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 2566, 49 L.Ed.2d 520 (1976) (upholding mandatory retirement from government service at age 50; legislation tested under minimum rationality scrutiny). We must therefore apply the two-stage inquiry outlined in Western & Southern Life Insurance, 668 U.S. at 451, 101 S.Ct. at 2083. The answer to the first question of this inquiry is obvious here. Although Louisiana has advanced a host of rationales for section 63's prohibitions on dual public employment, we need not look any further than the statute's explicitly stated purposes in order to uphold the legitimacy of the state's goals. Section 61 states the purposes of the Act's prohibitions. ¹¹ Restrictions on dual officeholding and public employment are not novel. They can be found in the statutes of many other states. ¹² Even under the common law, there were restrictions on the holdings of incompatible offices. See Annotation, 63 Am.Jur.2d Public Officers and Employees § 61-81 (1972 & Supp. 1981). Louisiana is legitimately concerned with its citizens' perceptions of public employment. The Louisiana statute is obviously aimed at the widespread perception that public employment-whether in federal, state, or local government offices-is merely a sinecure and that it is intolerable to give persons two slices of the public pie.

It was also reasonable for Louisiana legislators to believe...